Barack Obama Lectures On Constituonal Law

To: Students in Con. Law III From: Barack Obama Re: The Exam

Overall, I was impressed with the quality of the exams’- almost all of you identified the main issues, leaving me to score the exams mostly on the precision of your answers. The memo below gives you a basic idea of the analysis I was looking for in grading the exams, as well as some of the thoughts that you may have raised and for which I assigned appropriate credit. This memo isn’t intended to be exhaustive (although it is more comprehensive than I would have expected from any exam, given the time limits you were all working under); there may be issues that some of you identified that represent sparkling insight and for which you were awarded credit, but which are not included in this memo. Each exam should have four grades on the cover. The circled grade is the “official” grade. The other three grades are by part: that is, Part I, and the two parts of Part II. These latter grades are basically provided for your information, but they do not necessarily average out to your final grade, since the final grade took the curve into consideration. Question I - The Preserving Family Values Act

There are a number of possible claims available to Helen under both the Equal Protection Clause and the “substantive” prong of the Due Process Clause. In organizing a response to the question, it’s useful to examine each component of PFVA in turn. The prohibition against providing infertility services to unmarried persons. The first two clauses of PFVA bar both private and public doctors and hospitals/clinics from providing infertility services to unmarried persons. As most of you recognized, the question at the outset is what degree of scrutiny a court should apply in evaluating the classification between married and unmarried persons. With respect to a possible Equal Protection claim, the courts have never recognized unmarried persons as a “suspect class” (nor, possibly, should they, according to many of you, at least not if we accept the Carolene Products/Professor Ely/processual view of the Equal Protection clause as “protecting discrete and insular minorities”). As a consequence, strict scrutiny of the unmarried/married classification under the Equal Protection clause will arise only if we can establish that the PFVA’s prohibition against providing in vitro fertilization implicates one of the rights that the Supreme Court has deemed “fundamental.”

At first blush, the PFVA seems clearly to implicate such a right: the right to procreate first announced in Skinner v. Oklahoma. It is true that Skinner involved an active attempt by the government to sterilize persons it deemed unfit to procreate; as -such, it involved the sorts of violations of a person’s bodily integrity that have traditionally been suspect not only under long-standing interpretations of various clauses th th th in the Bill of Rights (4 , 5 , 8 , etc.), but under common law as well. In contrast, the PFVA involves no such encroachments on bodily integrity. Nevertheless, if the language of Skinner is taken at face value, then the fundamental right at stake in that case goes well beyond issues of bodily integrity, but instead involves the broader principle that the government cannot be in the business of deciding who should bear children and who should not - at least without offering up some pretty compelling reasons for doing so. If we accept this broad reading of Skinner, then it would appear doubtful that the distinction between the more “active” efforts to sterilize persons selectively and more “passive” but no less selective prohibition on the use of readily available technology to induce fertility should be legally relevant, at least for purposes of answering the threshold question of whether strict scrutiny does or does not apply. Assuming that a court finds Skinner to be directly on point, and therefore applies strict scrutiny to the PFVA, then the next step in our analysis is determining whether the PFVA is narrowly tailored to serve a compelling state interest. My guess is that the PFVA does not meet such a standard. While it is true that the Court has found the state to have anlegitimate interest in preserving the state-sanctioned marriage union (see, e.g., Michael H.), the Court has never indicated such a generally stated, inchoate interest to be sufficiently compelling so as to justify an outright ban on the exercise of a constitutionally protected right. Moreover, as most of you pointed out, the connection between restricting infertility services to married couples and “preserving the integrity of marriage” is so tenuous that it cannot be considered a narrowly tailored means of serving that interest. Similarly, although preventing out-of-wedlock births might be considered compelling given the correlation between such births and various social problems, the state has at its disposal a wide range of means to discourage such births (e.g. programs to encourage contraception, abstinence, etc.) that do not involve far-reaching restrictions on the ability of unmarried persons to access infertility services. Of course, Skinner doesn’t end our inquiry. In cases subsequent to Skinner, the Supreme Court has grounded its analysis with respect to reproductive rights issues not on the Equal Protection Clause, but rather, in the “substantive” prong of the Due Process Clause. Moreover, in an attempt to cabin the potential breadth of unenumerated rights under the Due Process Clause, the Court has left the status and scope of the “procreation right” increasingly unsettled.

Thus, on the one hand, the line of cases from Griswold through Roe seems entirely consistent with our broad reading of the “right to procreate” discussed above. Starting with a relatively narrow opinion in Griswold that relies heavily on the concept of marital privacy, the Court went on in Eisenstadt to announce “the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” In Roe, the Court found this right sufficiently fundamental that any burden the government places on the right must be subject to strict scrutiny. Based on these cases, one might safely assume that if the right to make reproductive decisions free from unwarranted government intrusion is sufficiently expansive to encompass an unmarried woman’s freedom to purchase contraceptive or terminate her pregnancies, then it must also encompass Helen’s right to access available medical technology in an effort to get pregnant. On the other hand, both the language and results in substantive due process cases since Roe indicate a potential narrowing of this right in at least two ways. First, in a number of cases involving the regulation of abortion (e.g. Casey), the Court appears, at least implicitly, to have moved away from the familiar (and perhaps unduly rigid) “fundamental rights/strict scrutiny” approach to analyzing these claims, and has instead resorted to what seems to be a more fluid and particularized balancing of individual liberty interests versus the interests the state seeks to vindicate and the means it employs. How much of a difference such a “balancing” approach might make in a court’s evaluation of this case isn’t clear, however. After all, even under a balancing of interests analysis, a court would probably feel compelled to recognize that Helen has some sort of interest in determining her procreative status, irrespective of whether that interest is labeled “fundamental.” On the opposite end of the scale, the State, in passing PFVA, has offered no interest that is remotely comparable to the state’s interest in protecting the life of the fetus. Moreover, if we take the analogy between abortion regulation and in vitro regulation one step further, and assume that even under a balancing approach a court must still strike down restrictions that “unduly burden” the exercise of a right/interest, then it is hard to conceive how an outright ban on the exercise of Helen’s right/interest in having children could survive judicial scrutiny. The second, more troubling, issue involves the Court’s tendency, in cases since Roe, to embrace notions of “tradition” as a means of curtailing the potential expansiveness of rights recognized under the Due Process Clause. As most of you recognized, this trend is most prominently displayed in Bowers v. Hardwick, but can also be seen in the Michael H. case, a case in which Justice Scalia argued that constitutionally protected substantive rights under the Due Process Clause must be defined at their most specific, traditionally recognized level. As applied to this case, Justice Scalia’s approach might result in a relatively narrow description of the right to procreate, i.e. the right to bear children within the context of a monogamous, heterosexual marriage; in that case, the PFVA would be subject only to rational basis review.

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Helen has several possible answers for Justice Scalia. First, Helen can point out that the majority of the Court has never explicitly embraced Justice Scalia’s cramped approach to defining the scope of rights protected under the substantive Due Process Clause. Indeed, such an approach, while consistent with Bowers, would be almost impossible to reconcile with the contraception and abortion cases. Second, the absence of any clear tradition with respect to in vitro services for single women cuts both ways: while there may be no clear tradition establishing the right to obtain such services, there is also no clear tradition of preventing single women from obtaining such services something that could not be said with respect to the tradition of criminalizing homosexual sodomy. Third, Helen might argue for a narrow reading of Bowers, noting the Court’s emphasis in that case on the absence of a connection between homosexual sodomy and “family, marriage or procreation”; in contrast, the connection between Helen’s ability to access in vitro services and her ability to bear children in both obvious and direct. Finally, as a fallback position, Helen might argue that the “fit” between the PFVA restrictions as applied to unmarried persons, and the purported state interests in preserving the institution of marriage and preventing out-of-wedlock births is so poor that the PFVA does not even survive rational basis review under the Equal Protection Clause. After all, the number of persons utilizing in vitro fertilization is so small that the PFVA can have a meaningful impact on the marital and reproductive decisions of only a negligible number of persons; with the vast majority of unmarried persons still free to have children out of wedlock, the statute must be considered grossly underinclusive. Conversely, if the state’s true interest is to avoid the public welfare costs associated with supporting single mothers and their children, then the means it has chosen might also be considered overinclusive, at least insofar as it sweeps in heretofore self-supporting persons like Helen. Of course, the more rigorous the level of rational basis review a court engages in (recall that Eisenstadt was supposedly decided under rational basis review), the more the court would appear to be engaging in heightened scrutiny - an indication, as some of you suggest, that courts do not use the tools of Equal Protection or substantive Due Process doctrine (i.e., three, tiers of judicial scrutiny, or the distinction between ordinary “interests” and “fundamental rights”) to guide their analysis, but rather, use these labels to justify, after the fact, what are inescapably decisions based on policy calculation, ethical and political considerations, and the idiosyncratic values ofparticular justices. Prohibition against providing in vitro services to homosexuals. The question here involves analyzing the degree to which PFVA more closely resembles the classifications at issue in Romer or Bowers; or, to state the problem a bit differently, evaluating the degree to which Romer modifies Bowers. th

As almost all of you recognized, despite some persuasive arguments by the 9 Circuit in Watkins, the Supreme Court has never recognized homosexuals as a suspect class for equal protection purposes. Indeed, although the Court in Bowers did not explicitly pass on the equal protection claims raised in that case, its willingness to uphold

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a statute criminalizing homosexual sodomy, while reserving the issue of whether heterosexual sodomy could be similarly criminalized, seems tantamount to stating that laws which discriminate against homosexuals are constitutional. The same conclusion can be drawn from the Bowers opinion’s substantive due process analysis: not only does the Court define the right of privacy so narrowly (based on the sort of “traditionalist” reading discussed above) that the private, consensual sexual conduct at issue in the case falls outside its ambit, but the Court goes on to say that a majority’s interest in expressing its moral distaste for homosexual conduct is, by itself, a sufficiently legitimate purpose for passing such discriminatory legislation. We’ve discussed above whether Bowers forecloses the possibility of a finding that the PFVA encroaches on one of Helen’s fundamental rights. If a court finds the right to procreate encompasses the right to obtain in vitro services, then it shouldn’t make a difference whether Helen is gay or straight - strict scrutiny should apply, and, according to our earlier analysis, at least, PFVA will be struck down. A more interesting question arises if we assume that a court rejects Helen’s claim that a fundamental right is at stake, and instead chose to subject PFVA to rational basis review. The recent Romer opinion may not overturn (in fact, it doesn’t even mention) Bowers, but it nevertheless indicates that even under rational, basis review, the Equal Protection Clause does not permit classifications based merely on a majority’s “distaste” of a particular group - at least not insofar as the classification is not merely directed at the group’s ability to engage in particular conduct that the majority finds disturbing, but rather, is “class legislation” that potentially disadvantages the group in a range of activities unrelated to any particular conduct. If this is an accurate reading of Romer, then it shouldn’t be hard for Helen to argue that the PFVA is in fact such noxious class legislation. After all, in the absence of any showing by the State of Wazoo that the PFVA, as applied solely to homosexuals, either strengthens marriage or prevents out-of-wedlock births in any statistically meaningful way, Helen could argue that the only conceivable purpose of the law is to harass and stigmatize homosexuals. Helen’s argument isn’t a slam dunk, however, given the remarkable opacity of Justice Kennedy’s opinion in Romer. In particular, it is possible to argue that what triggered the “rational basis review with teeth” engaged in by the Court in Romer was not the mere fact that the Colorado amendment targeted homosexuals, but rather, was the unconfined breadth of the Colorado amendment’s potential application. In line with this more limited reading of Romer, the State of Wazoo might argue that unlike the Colorado amendment, the PFVA does not sanction discrimination against gays solely because of their status, nor does it discriminate (or potentially discriminate) against them across the board (e.g. in their possibility of obtaining employment, housing, receipt of government services, etc.). Rather, the State of Wazoo might argue, the PFVA is narrowly directed at a particular form of conduct: namely, the rearing of children by homosexual couples, a form of conduct that the majority of Wazoozians find morally objectionable, in precisely

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the same way that the majority of Georgians in Bowers found homosexual sodomy to be objectionable. Which spin on Romer the Court might adopt is anybody’s guess. What is safe to say is that the views of particular justices on the desirability of rearing in children in homosexual households would play a big part in the decision., Restricting state health care plan coverage of infertility services to married, heterosexual couples. The final clause of the PFVA restricts the coverage of in vitro services under the state health plan to married, heterosexual couples. Most of you correctly identified the relevant cases here: in Maher and Harris, the Supreme Court ruled that the federal government was not obliged to fund abortions under its Medicaid program, even though the Medicaid program did cover pregnancy services. Both decisions rested on several related premises: 1) while the government may not unduly burden the exercise of a fundamental right like abortion, it is under no affirmative obligation to fund (“subsidize”) the exercise of that fundamental right (allowing for certain narrow exceptions involving criminal trials, etc.); 2) classifications based on wealth do not trigger strict scrutiny, even when they implicate a person’s ability to exercise fundamental right; and 3) the fundamental right to make reproductive decisions free from unwarranted government intrusion does not mean that the government cannot subsidize, and thereby preference, some choices (e.g. pregnancy) over others (e.g. abortion). At first blush, at least, the analogy between the abortion funding cases and this case seems fairly straightforward. First, it is clear that even if a court defines the right to procreate broadly enough to encompass Helen’s desire for in vitro services, and proceeds to strike down the PFVA under either the Due Process Clause or fundamental-rights prong of the Equal Protection Clause, the State of Wazoo remains under no constitutional obligation to subsidize any in vitro services if it doesn’t want to. It seems equally clear that if the State of Wazoo chooses to subsidize some constitutionally protected activities related to procreation (say, providing both coverage for pregnancies and abortions, but not providing in vitro coverage), there is nothing in the Fourteenth Amendment to prevent them from making that choice. What a number of you missed, however, is the question really at issue here: namely, whether the State of Wazoo can choose to subsidize some of its residents (married persons) in the exercise of a constitutionally protected activity (in vitro fertilization), while choosing not to subsidize other residents (unmarried persons, or homosexuals) in the exercise of that very same activity. In other words, the analogous situation in the abortion context is not where the state chooses to subsidize pregnancy, but fails to subsidize abortion; rather, it is where the state chooses to subsidize abortion for black women, say, but not for white women. Of course, the analysis here isn’t quite that simple, since - as we’ve discussed above - neither unmarried persons nor homosexuals are considered a suspect class. It is

therefore conceivable that a court might strike down the PFVA solely due to the fact that the statute infringes on a fundamental right, while at the same time upholding the funding classification under the most deferential form of rational basis review. Nevertheless, what is important to keep in mind is that the same “rational basis with teeth” arguments that are available in evaluating the constitutionality of the first three clauses of the PFVA are equally available here, and are not foreclosed by Maher or Harris. Gender claims. A number of you mentioned the possibility of raising a gender claim on Helen’s behalf, based either on the notion that only lesbians would have any need to resort to in vitro fertilization (presumably a male couple would need not so much in vitro services as they would a surrogate mother) or based on a broader theory that the PFVA reinforces gender stereotypes by coercing people into a nuclear family norm. The problem with the first approach is that the statute itself is facially neutral with respect to gender, and under cases like Feeney and Geduldig, Helen might have a hard time convincing a court that the Wazoo legislature passed the law with the intention of discriminating against women as a class. Similarly, while it is true that some of the language in the abortion cases (e.g. Casey) and the gender cases suggests some sensitivity to the relationship between marriage norms and the gender hierarchy, it has never gone so far as to suggest that marriage itself, as an institution, oppresses women; to strike down the PFVA on that basis would call into question almost any statute - e.g. family laws, property laws, estate law, tax laws - that privilege marriage over other forms of intimate relations, something that the Supreme Court is not likely to do anytime soon. Question IIA - Mayor Dwight’s Contracting Plan

Most of you correctly identified the threshold issue here: does the Mayor’s contracting plan constitutes a race-based affirmative action program? If the program is race-neutral, then it should be subject to only rational basis review under the Equal Protection Clause; under rational basis review, the program would almost certainly pass constitutional muster, since it appears to be rationally related to the legitimate government purpose of alleviating poverty, encouraging employment, and promoting business relocation in low-income communities. If, on the other hand, the program is held to be a race-based affirmative action program, then Mayor Duright will have an uphill battle having it upheld in the face of an equal protection challenge. In answering this threshold question, some of you jumped the gun a bit and simply declared the low-income classification contained in the Mayor Duright’s plan to be a thinly-veiled proxy for race. Although the hypothetical certainly offers some evidence for this conclusion, this is not the type of situation that existed in Yick Wo or Gomillion where the law is neutral on its face but “unexplainable on grounds other than race.” (Arlington Heights). Nor are we dealing with the type of program at issue in Adarand, which purported to provide preferences to contractors who suffered from socio-economic disadvantage, but then made the irrebutable presumption that any contractor who was a

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member of a minority group fell into this economically disadvantaged category; the Mayor’s plan carries with it no such presumption. Thus, any potential challenge to the plan would have to be evaluated under the familiar standard first set forth in Washington v. Davis for cases involving racially disparate impact - i.e. in order to invoke strict scrutiny under the Equal Protection Clause, the plaintiffs would have to show that the Mayor’s plan, while racially neutral, intentionally discriminates against whites. In making their argument, the white contractors might point to various factors that the Supreme Court, in Arlington Heights, says may support a claim of invidious discrimination: for example, the sequence of events leading up to the plan (a black mayor is elected in a racially polarized election) and the substantive departure in the manner in which HOPE contracts are being awarded relative to other contracts are allocated. The problem that the white contractors face, however, is that despite the lip service that the Court has given to such “circumstantial evidence” in making an invidious intent determination, the case law indicates that it rarely, if ever, finds such circumstantial evidence, standing alone, to be sufficient (see, e.g., the result in Arlington Heights itself, where the Court ruled against black plaintiffs challenging exclusionary zoning). Moreover, according to cases like Feeney, the mere knowledge on the part of the Mayor and his staff that the proposed plan disproportionately benefits blacks and disadvantage whites does not, by itself, prove invidious intent. Rather, the white plaintiffs will have to show that the Administration implemented the plan because of, and not merely in spite of, its disparate impact on whites. What does it mean for the government to pass a law because of, rather than merely in spite of, it racially disparate impact? If it means (as cases like Arlington Heights and McCleskey seem to suggest) that the government must be motivated by an active animus towards the group to be disadvantaged by its action, then Mayor Duright can plausibly -and perhaps sincerely -- answer that neither he nor his administration harbor such animus towards whites; they are simply interested in promoting opportunities for residents of poor communities, a disproportionate number of whom happen to be black Alternatively, the white contractors might argue that the “because of’ test simply requires a showing that the government, though its actions, seeks to benefit a particular racial group, as a group, instead of allocating rewards and burdens on the basis of some objective, non-racial standard like “merit.” Assuming; however, that the Mayor’s proposal will in fact utilize “objective measures” such as median income or firm location in determining who receives the benefit of a “plus factor” in the ‘allocation of contracts, then there appears to be nothing which prevents white contractors from benefiting from the program -- other than, perhaps, their own unwillingness to relocate into “low-income” communities or hire “low-income” workers. The mere fact that there is a strong correlation between race and the objective measure being used (in this case, “lowincome” status) can’t be sufficient to show intent (see, e.g., Justice O’Connor’s concurrence in Hernandez); if it were, then black plaintiff could presumably sue a city or state whenever - under the guise of urban planning or industrial development - those

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governmental bodies subsidized firms to locate in downtown or suburban areas that happen to contain no black residents. Thus, it would appear that under current Equal Protection doctrine, white plaintiffs would have a very difficult time proving that the Mayor’s plan is based on an invidious intent to discriminate against whites - a telling example, perhaps, of why an “intent” test is not a particularly fruitful means of analyzing disparate impact claims in a society where the socio-economic disparities between the races are so stark, pervasive, and deeply-rooted. Our analysis would be incomplete, of course, if we didn’t at least consider the possibility that a court might find the Mayor’s program to be a race-based affirmative action program. If that case, Supreme Court precedent under Croson and Adarand would require the court to subject the program to strict scrutiny; the fact that the program might be described as a “benign” racial classification would be irrelevant (Recall that Adarand resolves the issue, left open in Croson, as to whether courts must use a more deferential standard in evaluating federal, as opposed to state/municipal, programs. The answer is no. As a consequence, the fact that the HOPE program is federally funded is irrelevant to our analysis). Despite Justice O’Connor’s insistence in Adarand that strict scrutiny is not necessarily fatal, both Adarand and Croson indicate that race-based affirmative action programs are permissible only when narrowly tailored to remedy specific, documented instances of current or prior discrimination. Most of you did a good job evaluating the various factors in the hypo that might help or hurt the Mayor’s cause. On the plus side, the proposed program a) is of limited duration; b) provides for a “plus factor” rather than strict quotas or set-asides, and thus still allows for both individualized determinations and competition across racial lines; and c) creates a diffuse, rather than a localized, burden on white contractors (at least theoretically - it is possible, of course, that the program drives some smaller white contractors out of business). Some of you also mentioned the raceneutral language in which the program is framed as being relevant to the analysis under strict-scrutiny -- but if we are evaluating the program under strict scrutiny, then presumably the court has already decided that the program is not really race-neutral. On the minus side, the evidence of past or current discrimination - or at least tacit acceptance of discriminatory practices in the contracting industry -- by the City is, at this point, at least, to tenuous to meet the rigorous standards of proof called for in Croson. The statistical disparity between certified black contractors (5%) and contracts awarded to black contractors (1%) is ‘a useful starting point: as most of you pointed out, one of Croson’s central holdings is that only disparities between the number of contracts awards to minorities and the number of qualified black contractors can serve to justify an affirmative action program in contracting (disparities between the percentages of contracts awarded and the percentage of minorities in the general population are not relevant, according to Justice O’Connor, no matter how gross the disparities may be).

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Nevertheless, Croson and Adarand clearly indicate that bare statistics are only a starting point unless they can’t be explained as resulting from factors other than race. In her opinions, Justice O’Connor is somewhat vague on what additional evidence does provide a firm basis for a race-based affirmative action program (other than some sort of “smoking gun” indicating intentional discrimination on the part of recent administrations in awarding city contracts). What we do know is that evidence of “societal discrimination” of the sortcurrently available to the Mayor won’t fly with the Court; according to Justice O’Connor, such evidence does not provide any principled means by which to define the precise scope of injury sought to be remedied. Thus; too the extent that the Mayor is interested in designing a program that can withstand strict scrutiny, he better get cracking in search of more hard evidence of past discrimination in the contracting industry or in the dispensing of city contracts. Question IIB - Mayor Dwight’s Firefighter Plan

This question offers a slight variation on the issues raised by the Mayor’s contracting plan. The surface parallels between our hypothetical and the fact pattern in Washington v. Seattle School Board should have been relatively easy to spot (Some of you also cited Romer, which isn’t quite right - it was the lower court, and not the Supreme Court, that emphasized the “government restructuring” aspects of the Colorado initiative. Still, I gave you credit if your analysis tracked the discussion below, albeit citing the wrong case). Like the voter initiative in Seattle, the referendum being proposed by the union appears to single out an issue of special interest to blacks - in our case, fire department hiring practices -- and attempts to shift decision decision-making power over that issue from the local to the state level. According to Seattle, the fact that a state has the authority to make such a shift isn’t be relevant; a restructuring of the political process to make passage of “race legislation” more difficult than other forms of legislation places “special burdens on racial minorities within the governmental process,” in violation of Equal Protection Clause. But is the Mayor’s plan in fact legislation/decision-making of a “racial nature” as that term is used in Seattle? And, even if the Mayor’s plan can be considered “racial” in nature, does that automatically render a facially race-neutral referendum that disallows the plan a “racial classification” subject to strict scrutiny? These are tricky questions, mainly because Justice Blackmun’s opinion in Seattle lends itself to at least two very different readings. On the one hand, it is possible to argue that for all its fancy talk about government restructuring and democratic processes, Seattle is really just a straight-forward disparate impact case that was settled using the principles set out in Washington v. Davis. Under this reading, the Seattle School Board’s busing program was an explicitly raced-based effort to vindicate the rights of black schoolchildren to .a non-segregated education. By forbidding busing to achieve this explicitly racial purpose (while still permitting busing for various non-racial reasons),

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Initiative 350 disproportionately impacted black schoolchildren; and although the initiative may have been framed in race-neutral terms, the Court determined -- based on the sequence of events, the initiative’s alteration of normal procedural. practices; and so on., (i.e., the Arlington Heights factors discussed above) -- that the initiative was enacted “because of’ and not “in spite of’ its adverse effect on black schoolchildren. If this reading of Seattle is correct, and the facially race-neutral referendum being proposed by the union is simply subject to the Washington v. Davis test for intentional discrimination, then the Mayor will have real problems mounting a successful court challenge. After all, not only is the referendum written in non-racial terms, but the Mayor’s plan is also facially race-neutral. The Mayor might argue, of course, that although written in race-neutral terms, his plan really benefits blacks, and that the union’s referendum is therefore an act of intentional discrimination designed to keep the City’s Fire Department predominately white. But given the fact that the referendum appears to uphold the very principles of “merit through testing” that the Court in Washington v. Davis found to be so persuasive, it is hard to imagine that a court in this case would be willing to find that the voters of Wazoo voted to uphold such principles “because of,” rather than “in spite of’ its effect on future black hiring (as a number of you pointed out, examining a referendum under Washington v. Davis also raises serious issues regarding whose intent we are suppose to examine). The fact that the current test being used appears to have been “validated” through the consent decree process further weakens the Mayor’s argument. Indeed, in light of the court’s acceptance of testing as a legitimate means to measure merit and upgrade the workforce (were dealing here only with Equal Protection doctrine, and not Title VII law), it is conceivable that a court would sooner find the Mayor’s effort to change the testing procedure to be an impermissible affirmative action program than it would strike down the referendum as an impermissible racial classification. There is another, no doubt more controversial way to read Seattle. The argument would go something like this: Seattle recognizes that blacks are burdened not only by intentional racism, but also by facially neutral processes that nevertheless place blacks in a structurally subordinate position. Thus, anti-discrimination legislation of the type at issue in Hunter v. Erickson (in that case, a fair housing ordinance) is not the only type of legislation that is “racial” in nature; blacks may also seek to extract through the political process affirmative programs - like the voluntary busing program in Seattle - that may not be constitutionally required, but that nevertheless help alleviate structural inequality. Precisely because such affirmative programs are not constitutionally required (given the Court’s “negative charter of liberties” reading of the Constitution and theories of judicial restraint), a majority of voters may choose not to enact such programs, and may even choose to repeal those programs that the majority feels have outlived their usefulness. What the majority cannot do is to change the rules of the game so as to make it more difficult for blacks and other minorities to achieve such affirmative programs through the give and take of the democratic process - by resort, for example, to state-wide initiatives and referendums in which minority influence is lessened.

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If a court were willing to accept such a reading of Seattle, then the Mayor might have a chance at defeating the referendum. The Mayor could argue that once you get beyond certain baseline constitutional requirements of fairness - i.e. no outright discrimination on the basis of race, gender, religion, sexual orientation, etc. -- there are no pre-political, non-racial, “legitimate” ways to select a tire department or determine “merit.” The Mayor’s plan is “racial” in the sense that it represents an affirmative effort to increase black representation on the police force without resorting to quotas or lowering standards of performance; at the same time, it is no more racial than is the union’s plan to maintain the status quo through a regime of written examinations. The union is free to debate the pros and cons of the Mayor’s plan in the public square; it can put pressure on the City Council to block the Mayor’s proposal, and can organize to vote the Mayor out of office. What it cannot do is shift decision-making over these raciallycharged issues to the state level, where (we assume) blacks have less of political clout. There are problems with this argument, of course, the most obvious being the one that was raised by the state in Seattle - namely, if the “rules” of democracy in a given state include the possibility of state-wide initiatives and referendums, and if the “rules” of democracy also envision the state imposing its sovereign will on local governments within its borders, then in what sense does the initiative in Seattle, or the referendum in our hypothetical, change the rules of the game? If states and their voters can’t decide, through democratic processes sanctioned by that state’s constitution, to take certain decisions that happen to touch on race out of the hands of localities, then is there any limit to the state legislation that might be potentially overturned? To cite just one example, how do we evaluate state legislation that places property tax caps on localities? Such caps prevent localities from raising taxes to fund public schools beyond a certain level without a majority vote, and presumably has a disproportionate impact on black populations that are both younger and more likely to rely on public, as opposed to private, education. Are they unconstitutional under Seattle? The bottom line is that such an expansive view of Seattle would implicitly overturn the intent-based approach to evaluating racial issues embodied in Washington v. Davis. My personal guess is that the current Supreme Court would almost certainly shy away from such a reading of Seattle. Of course, we won’t have to guess on the Court’s position for long, since it is precisely these sorts of arguments that will come up in the current challenge to California’s Proposition 209, which bars state government from engaging in any form of affirmative action.

CONSTITUTIONAL LAW III Final Examination

December 12, 1996 9:00 a.m. to 3:00 p.m.

Autumn Quarter, 1996 Barack Obama

Instructions

1. This is an open book exam. You may use any materials or notes used in our class. You may not refer to cases, articles, etc. that were not used in class. 2. You will have six hours to complete the exam. The exam is designed, however, to be completed in approximately three hours. Feel free to use the extra three hours as you wish (anxiously flipping through the casebook for that one last citation, or heading over to the gym for a good workout - your choice). 3. The exam consists of two Parts. In grading the exam, I will treat each part as roughly equal in weight. Part Two contains two separately numbered questions: I will accord roughly the same weight to each question. 4. I would greatly prefer that your answer be typed (word-processed). Assuming you type, you must double-space, use a If-point font, and provide for at least one inch margins all the way around the page. Your answer must be no more than 15 pages; I will stop reading after 15 pages.

5. If you really truly cannot type, or lack access to a word processor, then you may use a bluebook. Please write on only one side of the bluebook, and remember to skip lines. 6. Read each question carefully and think before you write. Please do not feel obliged to make use of the 15 page maximum in formulating your answers. The exam can be answered magnificently in half that number.

Good luck, and have a good holiday.

Constitutional Law III - Autumn 1996 - Final Examination - Instructions

Part One (one and a half hours)

Helen, a forty-year old registered nurse, comes into your office seeking your best legal advice regarding possible constitutional claims against the State of Wazoo. Wazoo is a state in the United States. Helen informs you that she is a lesbian, and that she has been involved in a monogamous relationship with - and has shared a household with -- her partner, Rachel, for the past seven years. The two of them moved to the State of Wazoo just six months ago, in part so they could be closer to Rachel’s ailing mother. Since their arrival in Wazoo, Helen has worked at Wazoo State Hospital, a state owned and operated facility. Although the subject of her sexual orientation did not come up when she was interviewing for the job, Helen has made no attempt to hide her relationship with Rachel from her co-workers at the Hospital, and most them, including her supervisor, are aware that she is a lesbian. Helen maintains that she has suffered no harassment or discrimination on the job, and has received excellent performance reviews. For some time now, Helen and Rachel have wanted to start a family. Rachel cannot bear children for various medical reasons. Before moving to Wazoo, Helen attempted to become pregnant by way of artificial insemination, using sperm donated by Rachel’s brother, Jim. These attempts were unsuccessful, and Helen’s doctor subsequently advised her that due to blockage in her fallopian tubes, Helen’s best - and perhaps only -- hope of becoming pregnant would be through the process of in vitro fertilization (the procedure would involve removing Helen’s eggs from the uterus, fertilizing them with Jim’s sperm in a laboratory, and then transferring them back into Helen’s uterus). Moreover, Helen’s doctor informed her that because she is nearing the end of her childbearing years, the likelihood of in vitro fertilization resulting in a successful pregnancy would drastically diminish within the next two to three years. Helen and Rachel are therefore anxious to move forward with in vitro fertilization; they see it as their last chance at having a child of their own. Because Rachel’s work provides no health benefits, and given the expense of in vitro fertilization, Helen and Rachel will not be able to afford the procedure unless it is covered under the health care plan Helen receives as a state employee. Unfortunately, when Helen went in to talk to her benefits officer at the Hospital, she learned that the Wazoo state legislature passed a law last year, titled the “Preservation of Family Values Act” (PFVA), that, inter alia, prohibits any doctor or health care professional, whether in private practice or employed by the state, from providing infertility services to any unmarried person within the State of Wazoo. The statute further prohibits the use of any hospital, clinic or health care facility, whether public or private, from providing such services to any unmarried person within the State of Wazoo. PFVA goes on to read that “in the event a federal or state court finds these general prohibitions against the provision of infertility services to unmarried persons to be unconstitutional,

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then the prohibitions shall apply only to the provision of infertility services to homosexual couples.” Finally, PFVA mandates that coverage of infertility services under the health care plan for state employees shall apply only to married, heterosexual couples. The benefit officer at Wazoo State Hospital went on to tell Helen that in a highly publicized case last year, a single woman and her male partner obtained infertility services from a private clinic, in direct violation of PFVA. The Attorney General of Wazoo declined to prosecute the woman’s doctor in that case, and stated publicly (although not in court) that his office understood the primary purpose of the law to be the prevention of childbearing by homosexual couples. As a consequence of this failure to prosecute on the part of the Attorney General’s office, private doctors and clinics throughout the state have continued to provide infertility services to those persons who can pay their fees, without inquiring into the patient’s sexual orientation. Public institutions like Wazoo State Hospital, on the other hand, have felt obliged to abide by PFVA, and the benefit officer knows of no instance where unmarried state employees have been able to obtain coverage for infertility services under their state health plan. Helen’s attempt to obtain coverage for the in vitro fertilization procedure through her health plan has therefore been denied. Assume that everything the benefit officer has told Helen turns out to be true, and that there are no state action or standing problems involved in Helen’s case. Assume further that 1) PFVA does not define homosexuality; 2) PFVA defines marriage in the traditional fashion (i.e. a state-sanctioned, legally binding contract into which persons of the same sex cannot enter); and 3) PFVA’s stated purpose is both brief and vague namely, “to preserve the integrity of marriage as an institution,” and “to curb the steady increase in out-of-wedlock births” (the legislative record contains summary findings that out-of-wedlock births frequently result in economic hardship for both mother and child, and that such hardship eventually places a unsustainable strain the state’s social service budgets). Please analyze the possible claims Helen may have under both the Equal Protection Clause of the Fourteenth Amendment, and under the “substantive” component of the Due Process Clause of the Fourteenth Amendment. Given that this is a preliminary memo for your file, you do not need to arrive at any definitive conclusions regarding Helen’s claims; rather, your analysis should include any arguments that seem plausible, and should then identify any potential weaknesses in these arguments. In framing your analysis, you may find it useful to discuss the constitutionality of each component of PFVA separately. You should also consider the constitutionality of these various clauses in the statute not only as applied to Helen, but also as potentially applied to unmarried persons generally.

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Part 2 (one and a half hours)

Two years ago, Mayor Dudley Duright was elected as the first African-American mayor of Wazoo City. Wazoo City is the largest city in the State of Wazoo, with a population that is roughly 50 percent African-American and 50 percent white. The population is remarkably segregated, with almost 80 percent of all African-Americans residing in the city’s South Side, and almost 90 percent of whites residing in the city’s North Side. In winning the election, Mayor Duright garnered almost 95 percent of the African-American vote, and less than 15 percent of the white vote. Since the election, the Mayor has been under great pressure from some of his supporters to open up economic and employment opportunities to Wazoo City’s AfricanAmerican population. These supporters identify two areas of particular concern: city contracting, and the racial composition of the city’s Fire Department. You have been appointed as the city’s corporation counsel, and he calls you in to discuss these issues. 1) Contracting. The Mayor first refers you to studies showing that only 5 percent of the contractors certified by the city to obtain public works projects are AfricanAmerican, and that only 1 percent of all city contracts actually awarded go to AfricanAmerican owned firms. These same studies also show that African-American contractors are much more likely to hire African-American workers: less than 5 percent of the workers employed by white contractors are African-American, compared to 50 percent of the workers employed by African-American contractors. The Mayor’s supporters find the paucity of city work going to African-American contractors particularly galling given that poverty and unemployment in the city’s African-American neighborhoods is almost three times higher than it is in the city’s white neighborhoods. Moreover, under a federal program called Project HOPE, the city has just received $1 billion, to be allocated over a period of ten years, for the rehabilitation of Wazoo City’s low-income housing projects. Seventy-five percent of these housing projects are located within the city’s South Side; however, if current patterns continue, the lion’s share of Project HOPE contracts will go to white contractors. The majority of scholars who have studied the issue conclude that the lack of representation among African-Americans in the construction industry is the result of long-standing discriminatory practices at a number of different levels: a history of segregation and unequal resource allocation at the elementary and secondary school level; past zoning practices that have encouraged residential segregation; the continued inability of African-Americans to gain entry into trade unions that serve as the training ground for many successful contractors; the unwillingness of banks to finance African-American concerns (most of which are small and undercapitalized); the unwillingness of established white contractors to take on African-American firms as subcontractors; and finally, the well-established, albeit covert, practice in previous administrations of giving contracts only to their political friends, the vast majority of whom were white. Despite the wealth

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of historical and anecdotal evidence, however, there is no concrete evidence that the city has engaged in systematic discrimination in the awarding city contracts at any time during the past fifteen years. The Mayor is aware that the courts have struck down a number of affirmative action programs involving contracting in recent years, and is sensitive to accusations that he cares only about Wazoo City’s African-American population. The Mayor is also concerned that affirmative action programs too often benefit only a select group of African-Americans, and do not address the severe problems of unemployment and disinvestment in Wazoo City’s poorest neighborhoods. The Mayor has therefore asked his staff to prepare a plan that he believes will address his supporters’ concerns and survive challenge in the courts. The plan involves only those contracts related to the $1 billion, ten-year Project HOPE program. The plan would give a significant preference (a “plus” factor) in the awarding of Project HOPE contracts to any firm whose principle place of business is in a “low-income community” or whose owner is a resident of a “low-income community.” The plan would provide this same preference to any firm that meets particular goals in hiring workers who are residents of a “low-income community.” Under the plan, the term “low income” would be defined on the basis of such objective measures as median income and unemployment; the boundaries used to define particular “communities” would be identical to those that the city has used in the past for various planning purposes. Because the majority of Wazoo City’s low income communities are located in the South Side, the net result of the plan would be to give a substantial preference to contractors that are either owned by African-Americans or who hire African-American workers. Nevertheless, the Mayor’s staff has indicated that even if the plan is implemented, the majority of Project HOPE work will still go to established white contractors. The Mayor expects his plan to be challenged in the courts by the Wazoo City Contractors Association. He asks you to prepare a memo evaluating the legality of his plan under the current law established by the United States Supreme Court. You should argue both sides of the issue for him, but end by giving him your considered opinion on how to the courts might come out, and how he might best frame his proposal so as to survive constitutional scrutiny. 2) Fire Department Hiring. The second major area of concern for the Mayor involves the method by which new firefighters are hired by the Fire Department. At the moment, only 15 percent of the city’s fire-fighters are African-American, despite the fact that the pool of applicants largely mirrors the general population of Wazoo City (50 percent African-American). It is well-established that up until 1980, the Fire Department engaged in discriminatory hiring practices; indeed, getting a job as a firefighter was based largely on your political connections to party ward bosses. As the result of several lawsuits brought by African-American plaintiffs, and a federal consent decree subsequently entered into by the city in 1980, the Fire Department now hires new firefighters exclusively based on each applicant’s ranking on a written exam that is

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administered once a year. The examination is prepared and graded by a well-reputed testing firm that screens for any potential cultural bias in the examination, and all applicants are provided the necessary materials to prepare for the examination. Despite claims by some of his supporters that the fire-fighter examination is rigged, the Mayor believes that the difference in test performance between AfricanAmericans and whites is primarily the result of the inferior schooling that AfricanAmerican applicants have received in the past. At the same time, the Mayor is skeptical that the existing written exam accurately measures aptitude for the job of being a firefighter. He therefore plans to announce that starting next year, Fire Department hiring will no longer be based on the applicants score on an extensive written examination. Instead, the Department will administer to each applicant a short basic aptitude test; all applicants who pass this simple test and meet other basic qualifications (physical examinations, etc.) will be deemed qualified for hire, and will then be selected to fill available job openings on the basis of a lottery. The Mayor’s staff predict that as a result of this change, the makeup of the Fire Department, over time, will come to more closely resemble the racial makeup of the city. The Mayor has a major political problem brewing, however: the Firefighter’s Union has learned of the Mayor’s plan, and is adamantly opposed to any change in existing hiring practices. The Union argues that the Mayor’s plan represents nothing more than a disguised affirmative action program, and a return to old-fashioned patronage. The Union therefore plans to mount a major petition drive to place a binding referendum on the ballot in the next statewide election. The referendum would essentially require that all applicants for government employment in the State of Wazoo, including municipal employees, be hired on the basis of their ranked performance on state approved written examinations (the referendum would exempt the filling of certain “political appointees” from the requirement). The Mayor points out that for the better part of this century, the city has had exclusive power to determine the manner in which it selects its employees. It is clear, however, that under the Wazoo State Constitution, a majority of voters may transfer this power to the state through the referendum process. The Mayor also believes that the referendum is likely to pass, particularly because it is phrased without reference to race or gender, but will be packaged solely as a “good government” measure. The Mayor asks you to write up a brief analysis regarding the possibility of challenging the referendum, should it come to pass, as unconstitutional racial discrimination violative of the Equal Protection Clause. As before, you should make the strongest argument that you can for bringing such a challenge, and then indicate the weaknesses in your argument. In considering this question, however, feel free to present to the Mayor any broader policy issues or theories of racial justice that are raised by his plan and/or the referendum.

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To: From: Re:

Students in Con. Law III Prof. Obama The Exam

First, let me apologize for the extreme tardiness in getting this memo to you. Due to a miscue between me and my secretary in Springfield, I thought it had been faxed to the registrar and distributed over two months ago. Second, let me say how generally pleased I was with the quality of this year’s exams. The questions were tough-but the vast majority of you handled the main issues well, leaving me to score the exams mostly on the precision and subtlety of your answers. The memo below gives you a basic idea of the analysis I was looking for in grading the exams, as well as some of the thoughts that you may have raised and for which I assigned appropriate credit. This memo isn’t intended to be exhaustive (although it is obviously far more comprehensive than I would have expected from any exam, given the time limits you were all working under); there may be issues that some of you identified that represent sparkling insight and for which you were awarded credit, but which are not included in this memo. Each exam should have three grades on the cover. The circled grade is the “official” grade. The other two grades are by part. These latter grades are basically provided for your information, but they do not necessarily average out to your final grade, since the final grade took the curve into consideration.

Part I - The Cloning Ban Question 1 Dolly’s Claims

One way to approach this question is to first consider whether Futura’s ban on cloning would violate the constitutional rights of Dolly if she were competent and decided to reproduce herself through cloning. If the answer is yes, then Futura’s outright ban would presumably be struck down, and we can move to the narrower question of whether consent requirements of the sort instituted in those states that permit cloning are also unconstitutional. As most of you recognized, whether a decision to clone one’s self is constitutionally protected from government intrusion largely depends on whether such a decision falls within the ambit of “fundamental” rights recognized by the Supreme Court

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under the “substantive” prong of the Fourteenth Amendment’s Due Process Clause. There are several related arguments for the “fundamentalness” of the cloning decision. First, Dolly might argue that a decision to clone herself involves the right to procreate, a right the Court first deemed fundamental in Skinner v. Oklahoma. Skinner involved the selective sterilization of convicts, and hence was decided under the Equal Protection Clause; by definition, Futura’s outright ban on cloning involves no such classifications. Nevertheless, both the language of Skinner and a line of subsequent “right to privacy” cases decided under the Due Process Clause (Griswold, Eisenstadt, Carey, and Roe) all argue for a broad reading of the right at stake: a right to make decisions regarding childbearing free from government interference - at least absent a government showing that such interference is narrowly tailored to serve a compelling government interest. Moreover, although Griswold appeared to rest its opinion on issues of marital privacy and the sanctity of the home, Eisenstadt, Carey and Roe clearly extended the right beyond the boundaries of the home or marital intimacy. Does cloning fall within this fundamental zone of procreation/privacy? As many of you discussed, the answer probably depends on the degree to which the Court embraces or rejects the notion of “tradition” as a mechanism for curtailing the scope of the “substantive” Due Process Clause. In Michael H., Justice Scalia argued that constitutionally protected substantive rights under the Due Process Clause must be defined at their most specific, traditionally recognized level. This is the approach taken in Bowers v. Hardwick, for example, where the right at issue is described by the Court not as the right to sexual intimacy between unrelated, consenting adults, but rather as the right to engage in homosexual sodomy. As applied to this case, Justice Scalia’s approach might lead to an extremely narrow description of the right asserted by Dolly. Indeed, Scalia might argue that cloning does not even qualify as “procreation” under a standard dictionary definition of the term (for what it’s worth, Webster’s Dictionary defines procreation as “to bring a living thing into existence by the natural process of reproduction.“) Given the recent vintage of cloning technology, it would be difficult to argue that a narrowly-defined “right to clone one’s self’ is “deeply rooted in the Nation’s history and traditions.” Moore. In the absence of any deeply rooted tradition, Scalia would argue, and in circumstances where the states exhibit no clear political consensus on the issue, the Court has no business minting a new “right” or “liberty interest” to protect, but should instead evaluate Futura’s ban under rational basis review. Whether a majority of the current Court would in fact embrace such a cramped reading of the right to privacy/procreate cases is not entirely clear. On the one hand, a majority of the Court appears to reject Scalia’s approach in Casey. In that case, Justice O’Connor not only defends an activity that enjoyed a record of protection prior to Roe that was spotty at best, but also uses relatively expansive language to connect the abortion right with the contraception cases, indicating that these cases all “involve decisions concerning not only the meaning of procreation but also human responsibility and respect

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for it.” Indeed, it might be argued that for a majority of the Court, the outcome in Bowers depended in part on the fact that there was a long-standing tradition of prohibiting sodomy, and that in the absence of such a specific, traditional prohibition on cloning, the Court must necessarily rely on general principles - such as individual autonomy, or reproductive freedom - in evaluating the constitutionality of Futura’s ban. Dolly might also point out that Bowers emphasizes the absence of any childbearing interest with respect to sodomy, and that such a childbearing interest (through admittedly untraditional means) does exist in this case. On the other hand, the reasoning of the majority opinion in Washington v. Glucksberg appears to closely track Justice Scalia’s; not only does the Court identify tradition and “a careful description of the asserted fundamental liberty interest” as the “guideposts for responsible decision-making” in substantive Due Process cases, but the majority opinion also explicitly rejects a more fluid approach suggested by Justice Souter, in which tradition is understood as a “living thing.” Again, Dolly might argue that the analysis in Glucksberg rested heavily on the strong tradition against assisted suicide, a tradition that is not present in this case; she might also argue that while Justice O’Connor provided the fifth vote for the majority opinion in Glucksberg, O’Connor went on to write a concurring opinion in which she appears to distance herself somewhat from the tradition-laden language of the four other members of the majority. Still, the Glucksberg opinion indicates at the very least a deep hesitance on the part of the Court to further broader the scope of interests protected under the substantive Due Process Clause. A few of you suggested that a competent Dolly might have more luck couching her decision to clone solely as an issue of bodily integrity. Irrespective of whether cloning is or is not “procreation,” the argument runs, there clearly exists a long-standing tradition, both under the common law and under constitutional interpretation, of protecting an individual’s choice to reject even life-sustaining medical treatment. The same concern is evident in the abortion decisions; the state can’t force a Cruzan. woman to maintain a pregnancy against her wishes. Roe. If the state can’t force a woman to bear a child or accept life-sustaining treatment, why should it be able to control her decision to clone absent a compelling (or at least important) government interest? The problem with such an analysis, of course, is that the Court has never interpreted the Due Process Clause to protect a person’s right to do whatever he or she wants with his or her own body. The prohibition on suicide is just one example of a constraint on bodily autonomy that the Court considers constitutional; other examples include prohibitions on the ingestion of illicit drugs, prostitution, and the sale of body parts. A focus on bodily integrity/autonomy does highlight the possibility, however, that the Court might apply a balancing test of the sort used in Casey and Cruzan. In those cases, the Court refrained from clearly identifying the decision to have an abortion or to reject life-sustaining medical treatment as “fundamental,” but did acknowledge such decisions as “liberty interests” that deserve some constitutional protection. Applied to our case, a Court might determine that Futura’s outright ban constitutes an “undue

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burden” on Dolly’s decision to replicate, while upholding regulations that severely restrict the circumstances under which cloning technology might be used. It is important to recognize, however, that the term “liberty interest” is just as malleable as the term “fundamental right,” so that the use of a balancing approach by the Court does not avoid the definitional problems already discussed. For example, the Court might recognize a broad liberty interest in medically-assisted procreation, but still find Futura’s ban on cloning to be merely a restriction on one highly specialized technique among many. Under such an analysis, the fact that cloning might be the only means of bearing a genetically-related child for a handful of people like Mary and Joseph might trouble the Court; on the other hand, several of you were correct to point out that in Casey, Justice O’Connor expressed little concern for the fact that for some women, waiting periods and other restrictions might constitute an effective ban on abortion, and not merely an inconvenience incidental to an otherwise available right. Mary and Joseph’s Claims

Most of the discussion above regarding the appropriate standard of review with respect to Dolly’s potential claim applies with equal force to any consideration of Mary’s and Joseph’s potential claims. Again, it’s worth considering first what Mary and Joseph’s claims might be if not complicated by the fact of Dolly’s incapacity - in circumstances, say, where Dolly is terminally ill but competent and consents to the cloning procedure. Under such circumstances, it might be argued that Mary and Joseph’s claim of a “right to procreate” through cloning is even more persuasive than Dolly’s, since a) any cloned child would be in fact a product of Mary and Joseph’s genetic mixture; b) Mary and Joseph might have no other means of bearing a child genetically related to both of them; and c) the cloned embryo would be implanted in Mary’s womb and Mary would carry it to term like any traditional pregnancy. Described in these terms, it would be difficult to differentiate the cloning of Dolly from the use by other techniques commonly used by infertile couples to conceive - i.e. in vitro fertilization, the use of donated eggs, and so on. None of these technologies are “traditional” as that term is commonly understood, and yet it is hard to imagine the Court sanctioning an outright prohibition on their use without a pretty compelling reason for doing so. The fact that these new technologies increasingly facilitate post-menopausal child-bearing raises further doubts that any constitutional analysis of cloning can rest simply on the “natural” limits of reproductive capacity. Futura’s Interests - How Compelling?

Depending on how the Court resolves the “fundamentalness” issue, the Court would evaluate Futura’s justifications of its ban on cloning under either a) strict scrutiny (in which case the ban would need to qualify as “narrowly tailored” to achieve a “compelling government interest”); b) rational basis review (in which case the ban would merely have to be rationally related to achieving an legitimate government interest); or c)

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a more fluid balancing test of the sort employed in Casey and Cruzan. (I should note, by the way, that the first two of Futura’s asserted rationales for a cloning ban are drawn almost verbatim from President Clinton’s Commission on Human Cloning, which sought to explain its recommendation for a moratorium on any attempts to clone humans. The third rationale summarizes some of the arguments offered by various medical ethicists in the debate surrounding cloning.) Below we consider each of Futura’s rationales in turn: 1) Preventing psychological damage, etc. As most of you recognized, the weakest rationale offered by the state appears to be its asserted interest in preventing a class of clones who may experience “psychological damage, ostracism or even discrimination as a class.” While the interest in protecting children generally, and cloned children in particular, is certainly legitimate and probably compelling, the means the state has chosen can hardly be described as narrowly tailored, and would therefore not support the Futura’s ban under any form of heightened scrutiny. To begin with, the hypothetical offers no evidence of cloned children experiencing a disproportionate amount of psychological damage and social ostracism. But even if cloned children did experience such problems, the state surely cannot use possible evidence of societal bigotry against a class of children as a justification for preventing such children from coming into existence, any more than it can use bigotry to justify discriminatory child custody policies (Palmore) or discriminatory school assignment policies (Cooper). To hold otherwise would be to endorse a not-so-subtle theory of eugenics that might conceivably support state policies to prevent the birth of other groups who experience psychological difficulties, social ostracism and discrimination - e.g. minorities and the disabled. Indeed, it is not clear that this rationale could survive even rationale basis review. As several of you noted, in Cleburne, the Court reject the state’s use of social ostracism against the mentally disabled as a justification for discriminatory policies against such persons, even though it declined to hold that the classifications based on mental disability constituted a “suspect” classification under the Equal Protection Clause. If the state wants to prevent discrimination against the cloned, it can pass anti-discrimination laws. 2) Preventing objectification. organ harvesting, etc. The state’s asserted interest in preventing the objectification of children and the possible abuses that might attend such objectification is only slightly more persuasive than the “social ostracism” rationale. Concerns about the “objectification” of children seem to rest on the assumption that cloned children will be treated differently from children produced in the traditional fashion, an assumption that is not supported by the evidence. And although the interest in preventing organ harvesting or other abuses against cloned individuals - including children -- seems compelling (particularly in light of some of the more far out reports that have come out since I wrote the exam, regarding the possible creation of headless clones!), the state has at its disposal a wide range of means (e.g. bans on organ harvesting, bans on child abuse, etc.) that already prevent commerce in humans or human body parts.

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Although the “objectification/abuse” rationale would probably not survive strict scrutiny, and would not appear to justify an outright ban under an “undue burden” analysis (a range of regulations - from restrictions on who can clone to where cloning can be performed - could address fears of organ harvesting and other abuses without banning the procedure entirely), it might be sufficient under rational basis review. The state might argue, for instance, that the further development and widespread use of cloning technology will increase the risk of children and fetuses being bred for unsavory purposes, and make organ harvesting prohibitions more difficult to enforce. An outright ban might thus be considered rationally related to the state’s goal under the extremely deferential standards on display in Bower and some of the Equal Protection Cases decided under rational basis review (e.g. Railway Express Agency). 3) Preserving the sanctity of life/family bonds. This leaves the state with one last rationale - the notion that cloning violates “the sanctity of life and the bonds of family that lie at the very core of our ideals and our society.” That a state has a compelling interest in preserving an actual human life (i.e. preventing murder, suicide, etc.) is clear from the case law (Cruzan, Glucksberg). This doesn’t necessarily mean, however, that the state also has a compelling interest in preventing what it considers to be the “devaluation” of human life that might result from cloning. It might be argued that the abortion cases lend support to such an abstract “sanctity of life” concept, given that the Court finds the state’s interest in protecting the “potentiality of human life” to be compelling, without ever ruling that a fetus is a “person” or resolving the difficult question of when individual life begins. Roe. Whatever we consider a fetus to be, however, it is clearly more than an abstract proposition; in any event, it is hard to see how a compelling interest in protecting potential life translates into a compelling interest in preventing potential life. Similar problems arise when we consider the state’s interest in preserving the bonds of family. In other contexts, the Court has indicated that an individual has constitutionally protected rights to determine his or her familial relationships (Loving, Moore, Zabiocki). The Court has also upheld state regulations that seek to preserve existing family bonds - freely chosen by the individuals involved -- in the face of what a majority of the Court considered to be the countervailing liberty interest of a biological father who wants to establish paternity (Michael H.). In none of these cases, however, do* we find the Court upholding state restrictions on an individual’s fundamental right to bear children or form a family solely on the basis of the state’s abstract judgment of what a family should look like. As several of you pointed out, cases like Moore would seem to lend more support for exactly the opposite proposition - that the state cannot, and should not, make such judgments, but must instead base restrictions on family life on something more concrete. The question, then, boils down to this - can Futura’s moral judgment regarding the potential harms that cloning will visit on our current conceptions of life and family serve as a sufficient basis for instituting an outright ban? The answer appears to be yes if the Court evaluates Futura’s ban under rational basis review -- as many of you pointed

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out, it was just such moral judgments that the Court in Bowers found to be sufficient in upholding the ban on consensual homosexual sodomy at issue. Whether such moral justifications are enough to survived heightened review is a closer question. On the one hand, it might be argued that the moral judgments at issue with respect to cloning are far more profound than the moral questions involved in consensual sodomy - tinkering with the basic building blocks of life is obviously discomfiting, as are the possibilities of a world in which one’s child is one’s genetic twin, scientists claim they are God, and the very concept of individuality is called into question. On the other hand, to the extent that the Court is forced to grapple with such weighty issues, it might prefer to do so in the context of deciding whether cloning is or is not a fundamental right, rather than establish the troubling precedent that the state’s moral judgments, standing alone, can override an individual’s fundamental rights or liberty interests. Question 2 Having examined possible constitutional claims under the best of scenarios - that is, where Dolly is competent and gives her voluntary and informed consent to be cloned we can now turn to the question of how her incapacity affects the analysis. As a starting point, we can assume that if the Court upholds Futura’s outright ban, either because cloning is not a fundamental right or because Futura’s asserted interests are sufficiently compelling to override Dolly’s or her parent’s liberty interest in cloning, then the Court will determine that less restrictive regulations on cloning - such as the informed consent requirements imposed by those states that permit cloning - also do not violate Dolly’s or her parent’s rights under the substantive prong of the Due Process Clause. This “greater includes the lesser” argument does not insulate, however, the consent regulations from attack under the Equal Protection Clause. Even if the act of cloning itself is not a constitutionally protected right, selective restrictions on the activity might still be subject to some form ofjudicial review. The informed consent requirement imposes at least one such classifications: it distinguishes between parents of terminally ill minors, who are permitted to clone their child without the child’s consent, and parents of terminally ill, comatose adults like Dolly, who must show “clear and convincing” proof of their child’s consent. Unfortunately for Mary and Joseph, this particular classification is not considered “suspect” under the Court’s Equal Protection jurisprudence, and hence would be subject only to rational basis review. As noted above, such a standard of review provides states with the widest possible latitude in crafting public policy. Here, the consent requirement appears to be designed to prevent the possibility that a person will be unwittingly cloned; such a goal seems entirely legitimate, not merely because of the disturbing psychological and sociological implications that might arise in a legal regime in which an individual could be cloned without his or her permission, but also because such a goal comports with the well-established common law of battery, which forbids the touching of one person by another without consent or legal justification. Cruzan. And given the long-

standing legal distinction between adults and children with respect to their respective abilities to grant consent, it would be difficult to argue that the consent rules at issue here are arbitrary or irrational -- even if the rules fails to take into account those situations in which adults are unable to provide their consent due to a persistent vegetative state. Mary and Joseph’s last hope would be to argue that Dolly’s general statements regarding cloning do in fact constitute informed consent to be cloned, or, in the alternative, that Dolly’s living will delegates to Mary and Joseph all medical decisions, including the decision to have Dolly cloned. Like the parents in Cruzan, Mary and Joseph would go on to argue that the state’s imposition of a “clear and convincing” evidentiary standard violates Dolly’s right to have her wishes regarding “medical treatment” (or the delegation of decision-making authority) in the event she fell into a permanent vegetative state determined accurately and followed faithfully. Under rational basis review, it’s hard to see how Mary and Joseph could succeed in this claim. After all, the Court rejected almost exactly the same argument in Cruzan. It did so despite a willingness to assume that the decision to reject even life-sustaining medical treatment was “quasi-fundamental,” and despite the fact that it therefore subjected Missouri’s evidentiary law to heightened scrutiny. There are at least two differences in the fact pattern involving Dolly that might distinguish our case from Cruzan. First, Nancy Cruzan did not leave behind a living will explicitly delegating decisions regarding medical treatment to her parents in the event of incapacity; Dolly did. Setting aside for a moment the serious interpretive questions involved in defining “medical treatment” to include cloning, it might be argued that the right to delegate medical decision-making to a surrogate in the event of incapacity is itself a fundamental right or liberty interest, separate and apart from the issue of whether the decision to be cloned is a fundamental right or constitutionally protected liberty interest. In support of such an argument, one might point to Justice O’Connor’s footnote in Cruzan, in which she states that the Court has reserved the question of delegation of decision-making authority. Mary and Joseph obviously wouldn’t be home free under such an interpretation of precedent - a state might still insist that Dolly’s decision to delegate authority did not encompass the decision to clone, and that determining her true wishes must still be made under a “clear and convincing” test - but at least Mary and Joseph might have a shot. A second difference between Cruzan and our case involves the nature of the underlying decision being made. As many of you observed, the Court in both Cruzan and Glucksburg emphasized the finality of the decision in “right to die” cases, and the parade of horribles that might result from blurring the line between “natural” death and suicide or assisted suicide (financial pressures on families, biased “assistance” for the handicapped, the slippery slope into euthanasia, etc.). As substantial as the psychic harms from cloning may be, it can be argued that they do not compare in severity to the harms involved in a hastened death, and hence do not justify an evidentiary rule so strict that it prevents a pair of loving parents from cloning a child who suffered an untimely death.

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Again, such an argument might not work under rational basis review, but it would be worth a shot. Up to this point, our analysis of the consent requirement has assumed that the Court declined to find the decision to clone to be a fundamental right, or at least a constitutionally recognized liberty interest. How would our analysis change if it did make such a finding? In all likelihood, the arguments available to Mary and Joseph wouldn’t be that different from those available under rational basis review - particularly if we assume that even under heightened scrutiny, the Court would not strike down as invalid per se consent rules designed to prevent individuals from being cloned willy-nilly without their knowledge or consent. The final outcome might not change, either - for reasons discussed above, the consent requirement certainly does not appear to be significantly overbroad. For our purposes, it is sufficient to note that the Court would give Mary and Joseph’s arguments more attention under heightened scrutiny, and would scrutinize with more care both the rationale behind the consent requirement and the narrowness with which the requirement was drawn. Thus, the Court might find a state’s interest in preventing the unauthorized cloning of individuals by unrelated third parties to be compelling, but might question whether the state has an equally compelling interest in preventing Dolly from delegating the authority to clone to her parents. Similarly, the heightened scrutiny called for under the fundamental rights prong of Equal Protection analysis might lead the Court to question a rule that prevents Mary and Joseph from cloning Dolly while permitting parents of terminally ill minors to clone their child.

Part 2 - Ujamaa School Question 1 - Race Claims

Although there are several ways of approaching this question, I would probably start by considering whether the Splitsville School Board, in establishing Ujamaa School, is engaging in either de jure or de facto segregation of students on the basis of race, in violation of the Equal Protection Clause and Brown v. Board of Education. In Brown, the Supreme Court held that public school facilities that intentionally separate students by race are “inherently unequal,” and thus a per se violation of the Equal Protection Clause. Although the original proponents of Ujamaa called for an “allblack, all male” school, the fact pattern is ambiguous as to whether the Splitsville School Board incorporated such explicitly racial language in the actual plan it voted on and adopted. If so, such race-based language, standing alone, might be sufficient to persuade a court that de jure segregation is at issue here.

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Even if such explicit references to an “all-black, all-male” school were omitted from the final plan approved by the school board, plaintiffs would still have a strong argument that Ujamaa constitutes a form of de facto segregation. Although the school board has couched the mission of Ujamaa in race-neutral language (i.e. fostering a spirit of discipline, academic excellence, etc.), it might be argued that the entire thrust of Ujamaa - from its “Afrocentric” curriculum to its “Rites of Passage” program to its goal of recruiting an all-black, all-male teaching staff - caters exclusively to the particular needs of black male students. In the parlance of Feeney, a plaintiff could argue that Ujamaa would not have been created “but for” the school boards desire to separate students on the basis of race. Moreover, a plaintiff could argue that Ujamaa’s voluntary admissions policy is irrelevant, since the state may not institute “freedom of choice” plans that it knows will interact with preexisting societal pressures and racial polarization to steer parents and students inexorably towards segregated schools. Green, Fordice. As persuasive as this argument might appear at first blush, it is by no means a slam-dunk; as many of you indicated, the school board would have at its disposal a number of plausible counter-arguments. To begin with, the school board might argue that (absent the explicit references to an “all-black” school) the creation of an “Africancentered” immersion school with an “Afrocentric” curriculum does not, by itself, indicate an intention to segregate students on the basis of race, any more than does the use of more traditional - and some would say “Eurocentric” - curriculum in other Splitsville schools. Instead, the school board would say, the Ujamaa program is simply expanding the menu of choices available to students in the system, in much the same way as various magnet schools structure their curriculum around Latin studies or Shakespeare. Correspondingly, the school board could argue that to the extent Ujamaa is tailored towards the particular needs of inner-city black males, the reason is not because of any interest in discriminating against other groups, but because black males make up the cohort of children most likely to underachieve in conventional schools. Setting aside the issues of gender for the moment (to be considered below), the differences in performance between black and white children are, under this argument, indisputable indeed, it is precisely these differences in performance that justify the wide-spread practice of “tracking” students within many supposedly integrated schools, a practice that often results in extreme levels of classroom segregation but has never been ruled to be unconstitutional. The school board could also argue that neither Green nor Fordice are applicable to this case, since both decisions were rendered against the backdrop of active; system-wide de jure segregation. In its effort to dismantle Jim Crow, the Supreme Court was well within its remedial power to insist that a school system take active, affirmative steps to end existing patterns of discrimination and effectuate a “unitary school system;” in such a context, the Court was also justified in presuming that any “freedom of choice” plan was instituted to maintain, rather than dismantle, school segregation. In contrast, Ujamaa defenders might argue, the federal courts have determined that the Splitsvilie school system is “unitary,” and there is nothing in the fact pattern to indicate that the creation of

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Ujamaa will exacerbate the degree of segregation that currently exists as a result of housing patterns and white flight. So long as the racially-neutral admissions criteria are maintained, the school board could argue, the Court has no constitutional basis for presuming that the choices of some parents and students not to apply to Ujamaa are the result of invidious intent or action by the school board, any more than the Court had a constitutional basis for imputing discriminatory motive on the part of a school board that fails to adjust district lines for purposes of maintaining racial balance in the face of changing demographics. Spangler. How might a court sort through these conflicting arguments? In part, it would depend on how the court interprets the intent requirement first announced in Washington v. Davis. If “discriminatory intent” means merely the intentional taking of race into account in designing government programs, then the totality of the evidence with respect to how Ujamaa came about (i.e. the intent of the two board members who originally proposed the plan, the racial orientation of the curriculum, etc.) would probably meet such a standard, irrespective of the facially-neutral manner in which students are selected, and the facially-neutral ends (improved academic performance) that the racially-oriented means are ostensibly designed to serve. If, on the other hand, invidious intent speaks to some form of active animus on the part of state actors towards the group to be disadvantaged by the its action (as cases like McCleskey seem to suggest), then the school board can plausibly argue that the intent test is not met. Indeed, one of the difficult questions facing a court in determining whether the establishment of Ujamaa constitutes intentional race-based discrimination is the absence of an obvious victim or group of victims that have suffered discriminatory effect/impact. Imagine for a moment that the Splitsville school board concedes that it created Ujamaa specifically to benefit African-American students. The school board might nevertheless argue that Brown and subsequent desegregation cases have no application to this case, precisely because no one is harmed. As we touched on above, the board might argue that Brown and its progeny were primarily concerned with the stigmatic harms that Jim Crow conveyed, the racial stereotypes and socio-economic subordination that segregation perpetuated, and the circumstances on which such stereotypes feed. Because the “selfsegregation” at issue in Ujamaa is designed to empower, rather than stigmatize and subordinate, African-American boys, the school board might argue, the Ujamaa plan is perfectly consistent with the true spirit of Brown. Such a “subordination” or “stigmatic harm” approach to Brown obviously has its adherents. Indeed, a number of Supreme Court justices used a variant on this reading of Brown to justify the use of intermediate scrutiny in evaluating affirmative action programs; according to these justices, it is possible to distinguish between “benign” and “invidious” race-based classifications by examining whether the classification stigmatizes a minority group and/or reinforces there subordinate status. Bakke, Adarand (Stevens dissent). Such an reading of Brown might appear particularly compelling in a case like ours, where a) the school board acted on the suggestion of two black members and with the apparent support of Splitsville’s black community; b) Ujamaa has no appreciable

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impact on either black or non-black students who choose not to enroll in Ujamaa; c) those students who are enrolled in Ujamaa were already attending schools that were essentially segregated; and d) because of previous court rulings (e.g. Spangler, Miliken, Jenkins II) that restrict the ability of school boards to counteract segregated housing patterns and economic stratification, the school board is essentially powerless to assure that students attending these segregated schools will ever enjoy the presumptive benefits of integrated schools. Under such circumstances, it might be argued that any opinion striking down a promising program like Ujamaa as race-based school segregation would be elevating form over substance. Of course, as many of you pointed out, it is precisely such an approach to Equal Protection jurisprudence - an approach that insists on “color-blindness” with respect to all government action - that the current Supreme Court would seem most likely to apply in evaluating Ujamaa. For if in fact “benign” segregation of the sort taking place in Ujamaa can be analogized to affirmative action. then the Supreme Court has already rejected the notion that such “benign” racial classifications should be subject to a lower degree of scrutiny than “invidious” racial classifications. Croson, Adarand. Moreover, it might be argued that a case like this one underscores the wisdom of such an approach. How, for example, might a court distinguish between a school board’s “benign,” as opposed to “invidious,” act of segregation? Surely, the intent of Splitsville’s black school board members in supporting the Ujamaa plan cannot be dispositive; not only is it possible that these officials have themselves been infected by the race-conscious belief that black males somehow cannot cope in “regular” school settings, but the school board as a whole might be motivated as much by political expediency - a symbolic, costless solution to the daunting problems facing the public schools - as they are by the genuine needs of black children. Likewise, the fact that a particular majority of black parents may support all-black schools cannot be dispositive - we might all agree that our rights under the Equal Protection Clause are not subject to plebecite. In fact, it is worth noting that in Bakke, one of the means by which liberal justices like Brennan and Marshall proposed to distinguish between “invidious” and “benign” racial classifications was whether the classification promoted or discouraged segregation of the races - a test that would hardly be helpful to the Splitsville school board in this case. Of course, the school board might argue for a fact intensive, “totality of the circumstances” approach for discerning whether Ujamaa constitutes “invidious” or “benign” segregation, an approach that would take into account the voluntary nature of the pilot school, its negligible impact on the school system as a whole, and the concrete benefits (at least in terms of test scores) that the boys enrolled in Ujamaa seem to be receiving. But according to Justice O’Connor in Adarand, it is precisely to encourage such a fact intensive inquiry, rather than to permit facile pre-determinations regarding what is “benign” and what is “invidious,” that the Court now insists on subjecting all racial classifications to strict scrutiny.

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Is it possible that Ujamaa might survive strict scrutiny? In Adarand, Justice O’Connor suggested that strict scrutiny need not always be “fatal in fact,” and that racebased classifications might be permissible when narrowly tailored to remedy specific, documented instances of current or prior discrimination. The fact pattern suggests that there may have been such prior discrimination on the part of the Splitsville school board (while a consent decree does not constitute an admission of guilt, the evidence that brought about the consent decree might be sufficiently specific to meet the standard discussed by Justice O’Connor in Adarand). Moreover, while a federal court has determined that Splitsville has operated a “unitary” system for several years now, there is at least an argument to be made that such a finding of “unitariness” should not be determinative with respect to whether Splitsville can voluntarily institute a race-based remedial plan; after all, the criteria for determining “unitary” status in the desegregation context is colored by all sorts of issues (e.g. institutional competence, local control, political legitimacy, etc.) that should not come into play in evaluating voluntary remedial programs. Put more bluntly, a finding of unitary status may not necessarily mean that all the ills of prior or current discrimination have been cured. Even if a court were willing to consider some form of race-based remedy permissible to make up for previous discrimination in Splitsville, however, it’s hard to argue that the Ujamaa program is narrowly tailored to remedy the particular ill of prior or current school segregation. The Court in both Croson and Adarand repeatedly emphasized the availability of race-neutral strategies in addressing the lingering effects of prior discrimination as one of the criteria for evaluating the permissibility of affirmative action under strict scrutiny, and one can imagine a number of race-neutral strategies from smaller class sizes to enrichment programs - that could be instituted in existing inner-city schools and that could have an equally salutary effect on student performance. A few final points are worth mentioning. First, most of you recognized that black students could challenge Ujamaa, even if Ujamaa was supposedly designed to benefit blacks. On the other hand, a number of you made the mistake of assuming that white students might have a problem challenging Ujamaa under the Equal Protection Clause simply because they are not members of a “discrete and insular” minority. Although the carving out race and gender as “suspect classifications” under the Equal Protection Clause has often been justified under theories of “representation reinforcement,” the affirmative action cases make clear that the current Court prefers to ground its Equal Protection jurisprudence on a theory of “color-blindness,” so that race classifications are subject to strict scrutiny irrespective of whether the “victim” of the classification is white or a member of a minority group. As noted above, our hypothetical case does raise some troubling issues regarding what type of harm a white plaintiff might have suffered under the Ujamaa plan; not only would it be hard to argue that white students in the Splitsville system somehow suffer from subordinate status as a result of Ujamaa, but the fact pattern indicates that no true “preference” is being conferred to black students - i.e. we are not dealing here with a limited number of academic slots, jobs, government contracts or other goodies that a

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court might insist be allocated on the basis of “neutral” criteria. A white student might argue that he or she is less likely to be taught by a black male teacher as a consequence of Ujamaa, and that the experience of a race- and gender-diverse teaching staff is a good of some sort, but it’s hard to figure how the Court could recognize such a nominal reduction in potential diversity as a constitutionallycognizable harm without opening the door to a wide range of other “diversity-based” claims within existing school systems. A claim brought by white students might thus have to rely on some theory of “expressive” harm - i.e. a theory that irrespective of any concrete harms that white students may suffer, they, like students of all races, are diminished in some fashion whenever the government acts on the stereotypical notions of race. From a normative perspective, such an approach is perfectly defensible; indeed, Justices Scalia and Thomas would probably argue that it is precisely such a normative perspective that was the lasting legacy of Brown. Such an “expressive harm” theory also appears to underlie the Court’s holdings in voting rights cases like Shaw v. Reno. (I am aware that I didn’t assign Shaw v. Reno in the readings for the course, but have no fear; I gave those of you who recognized the problem of a lack of discriminatory effect/harm full credit for your insight, even if you didn’t have a cite or use the term “expressive harms.“) Nevertheless, it is worth noting that the recognition of such a generalized, “societal” harm is in strong tension with a number of traditional standing requirements, and would appear to run contrary to the very notions of “individualized” harm that the Court has used in cases like Adarand to attack affirmative action programs. As for Latino and/or Asian students, a number of you argued that they do suffer a more specific harm as a consequence of the Ujamaa plan (a harm discussed further below in the context of gender claims). The argument runs something like this: by instituting the Ujamaa plan, the Splitsville school board has acknowledged that a culturally “sensitive” curriculum has a real impact on student performance. And once the school board makes such a concession, it is obligated to provide the “advantage” of a culturally specific curriculum for all minorities that may be under-performing within a traditional school setting - not just African-Americans. Although it is doubtful that the Supreme Court would ground its evaluation of Ujamaa’s constitutionality on such widely contested theories of cultural bias in school curriculums, the argument does highlight one of the underlying fears that would lead the Court to strike down a plan like Ujamaa - namely, the fear that any semblance of “race-specific” schools will inexorably lead to wide-spread racial and ethnic “balkanization.” Question 2 - Gender Claims

As most of you recognized, VMI provides the starting point for evaluating potential gender claims against Splitville. The decision declined to hold that statesponsored single-sex schools, like racially-segregated schools, are per se illegal; Justice Ginsburg reiterated that gender classifications are not treated with the same degree of scrutiny as race classifications, and -- without squarely deciding the issue -- suggested

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that single-sex schools might be justified as part of a State’s interest in promoting “diverse educational opportunities.” At the same time, the VMI decision indicates that government-sponsored single sex schools will be subjected to exacting scrutiny by the Court, although the precise formulation is a bit up for grabs. Historically, gender classifications have been subject to intermediate scrutiny: a gender classification will survive only if “substantially related to an important government interest.” In VMI, Justice Ginsburg tacked on to this formulation what would appear to be some tougher language; citing Mississippi University for Women v. Hogan, Ginsburg stated that “[p]arties who seek to defend gender-based government action must demostrate an ‘exceedingly persuasive justification’ for that action.” Writing separately, Justice Rehnquist insisted that VMI did not ratchet the standard of review, and that the term “exceedingly persuasive justification” simply described the difficulty in surviving intermediate scrutiny. Irrespective of whether VMI does or does not signal a higher degree of scrutiny for gender claims, what is certain is that any justification for gender-based classifications must be “genuine” as opposed to hypothesized, and must not rely on overbroad generalizations about differences between the sexes. Applying VMI to our case, we must first answer the threshold question of whether the creation of Ujamaa does in fact constitute gender-based government action. Clearly, the proponents of Ujamaa were as intent on creating a “male-oriented” environment as they were in creating a “African-centered” environment, and might not have created Ujamaa “but for” the desire to cater to the needs of black males. Still, Ujamaa’s open admissions policy and willingness to admit girls on the same basis as boys may present an even tougher hurdle for female plaintiffs than it is for those bringing racebased challenges against the school. To begin with, it is more difficult to appeal to cases like Green for the proposition that “freedom of choice” plans are constitutionally suspect where there has been no history of state-sanctioned segregation by gender, and where all girls other than those who might enroll in Ujamaa learn in a environment that has an roughly equivalent number of female and male students. It is still possible to argue that the very design of Ujamaa makes it hostile to female students and hence discourages them from applying, but it’s hard to tell from VMI whether such an argument would be successful. Despite the clear hostility with which VMI greeted prospective female cadets, Justice Ginsburg never reached the issue of what kinds of accommodations the Institute would have to make once women were admitted. Indeed, some of the language in VMI might support the proposition that no accommodations whatsoever might be required (beyond perhaps separate bathrooms, showers, etc.), insofar as any “softening” of the adversative method, curriculum and training program would be based on the very “overbroad” generalizations about female preferences and learning styles that Justice Ginsburg so vigorously rejects. If VMI is not required to alter its curriculum or mission, but is only required to admit women, to pass constitutional muster, then it is hard to see how Ujamaa’s failure to shape its curriculum to attract more female applicants would violate the Equal Protection Clause.

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Plaintiffs bringing a gender-based claim might address this problem in two different ways. First, plaintiffs might argue that the Ujamaa curriculum’s explicit (and perhaps exclusive) focus on “male achievement” qualifies as an unconstitutional gender classification, regardless of whether women are admitted into the school. According to this argument, the state should not be able to support any school whose core mission is to reinforce gender stereotypes and structures of gender hierarchy. As we discussed in the race context, the Court might not be comfortable with an argument grounded in issues of pedagogy and curriculum; after all, if Ujamaa’s curriculum alone subjects the school to heightened constitutional scrutiny, it might open the floodgates for female public school children across the country to bring Equal Protection claims against their schools for failing to focus enough on female achievement, authors, and so on. On the other hand, the announced intention of Ujamaa to focus on male achievement might be sufficiently unique in the public school context to cabin a ruling that such announced intentions amount to a gender classification subject to heightened scrutiny. Second, plaintiffs might argue that what makes Ujamaa a gender-based action is not simply the establishment of a school targeted towards the particular needs of male students, but the failure of the Splitsville school board to simultaneously create a school similarly targeted towards the needs of female students. In other words, once the state goes down the road of offering diverse educational opportunities within the public school system, it cannot gear those opportunities only to certain sub-groups without raising Equal Protection concerns. The language of VMI certainly lends support to such an argument; the argument is particularly plausible if presented by African-American girls, whose scholastic achievement levels are not sufficiently different from their male counterparts to justify their exclusion from the presumed benefits of an “Africancentered” curriculum and extra-curricular programs. Establishing that Ujamaa constitutes a gender classification would seem to be the whole ball of wax, since once the Court accepted such a characterization, it’s hard to see the “exceedingly persuasive justification” for establishing Ujamaa without, at minimum, establishing a comparable school for underachieving girls. Unlike the situation in VMI, the establishment of a comparable all-girls school would not be difficult, and as we’ve already indicated, the needs of African-American girls in particular seem no less compelling that the needs of African-American boys. There’s also no reason to assume that the benefits of the particular pedagogical theories behind Ujamaa (e.g. engaging students through their culture, concerns, etc.) would be less successful in raising female achievement. Of course, if the Splitsville school board did decide to establish a female version of Ujamaa, the Court might still have to decide the question it avoided in Hogan and VMI - namely, whether a limited number of state-sponsored “separate but equal” schools are permissible in the gender context, or whether the establishment of even a few such sex-segregated schools within an otherwise gender-integrated system “inherently” reinforce stereotypes and duplicate patterns of subordination in such a way as to violate the Equal Protection Clause. (In answering this question, the Court might take notice of a

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widely-publicized study - released since you took the exam -- that questions some of the previously-assumed benefits to girls that attend sex-segregated schools.) Question 3 - Is Ujamaa a Good Idea?

I have no model answer for the third question in this part; the purpose of the question was simply to give you an opportunity to consider some of the issues raised above and arrive at your own conclusions. I did find it interesting that, based on a justifiable skepticism in the prospect of truly integrated schools and an equally justified concern over the desperate condition of many inner city schools, a slim majority of you favored the idea of a Ujamaa-type program (although a far larger majority concluded that as a legal matter the particular program outlined in the hypo couldn’t survive constitutional scrutiny).

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CONSTITUTIONAL LAW III Final Examination

December 13, 1997 9:00 a.m. to 3:00 p.m.

Autumn Quarter, 1997 Prof. Obama

Instructions

1. This is an open book exam. You may use any materials or notes used in our class. You may not refer to cases, articles, etc. that were not used in class. 2. You will have six hours to complete the exam. The exam is designed, however, to be completed in approximately three hours. Feel free to use the extra three hours as you wish. 3. The exam consists of two Parts. In grading the exam, I will treat each Part as roughly equal in weight. The numbered questions within each part will be accorded roughly equal weight, although they are obviously interrelated and will be graded as such. In other words, don’t worry if your answer to one numbered question is longer or shorter than another. Just make sure that you have answered all the questions in each Part. 4. I would greatly prefer that your answer be typed or word-processed. Assuming you type, you must double-space, use a 12-point font, and provide for at least one inch margins all the way around the page. This works out to roughly 435 words per page (five characters per word). Your answer must be no more than 12 pages (or roughly 5,200 words); I will stop reading after 12 pages. 5. If you really truly cannot type, or lack access to a word processor, then you may use a bluebook. Please write on only one side of each bluebook page, put your exam number on each bluebook, and remember to skip lines. The rough 5,200 word limit still applies. 6. Read each question carefully and think before you write. Please do not feel obliged to make use of the 12 page maximum in formulating your answers. Precision and imagination, rather than volume, is what counts. Good luck, and have a fine holiday.

Part One (ninety minutes) Mary and Joseph, a married couple in their early fifties, are residents of Bethlehem City, which is located in Futura, a state in the United States of America. Last year, their 23 year old daughter, Dolly, a second-year medical student at Futura State University, was in a serious car accident. Dolly sustained severe head injuries as a result of the accident, and was already unconscious when removed from the wreck. Despite the best efforts of the doctors at Bethlehem Medical Center, Dolly has been in a persistent vegetative state for the past year. She survives only with the assistance of respiratory, feeding and hydration tubes, and shows no sign of brain function. Doctors have indicated to Mary and Joseph that Dolly has no prospects whatsoever for recovery, and that the removal of the life-support system currently in place will cause Dolly’s death. Perhaps due to her interest in medicine, or perhaps due to a natural morbidity, Dolly had the foresight to draft her own “living will” prior to the accident. The will grants Mary and Joseph joint authority “in making any and all decisions regarding medical treatment” on Dolly’s behalf in the event she becomes comatose, “including the decision to terminate life-sustaining treatment.” It is uncontroverted that the “living will” constitutes “clear and convincing” evidence of Dolly’s informed and voluntary wish to delegate authority to her parents regarding the decision to terminate life-sustaining treatment, and that such a conferral of authority is valid under Futura state law. Grief-stricken at the imminent loss of their only child, Mary and Joseph have been following with considerable interest the rapid advances taking place in the field of human cloning. It seems that over the past five years, several hundred happy, healthy infants have resulted from the process, which involves taking a cell from a living person (so far, these cells have all come from infertile couples seeking to conceive) and slipping the cell into an egg cell whose genetic material has been removed. The emergent embryo, which will be a genetic copy of the adult cell donor, is then transferred to a woman’s womb, where it will develop in the usual fashion until birth. Despite the controversy that surrounded the initial batch of cloned infants and the continuing opposition of most religious groups to the new technology, the U.S. Congress has thus far declined to ban the practice. Congress has established a limited set of federal guidelines regulating the medical practices and technologies to be used in the cloning of humans, but has otherwise chosen to leave the decision regarding the regulation and/or permissibility of human cloning in the hands of state legislatures. So far, 10 states have instituted an outright ban on the practice; another 10 have no laws at all pertaining to the practice, while the remaining 30 have a patchwork of regulations with varying degrees of intrusiveness. Medical ethicists remain divided on the issue, but all agree that there is no scientific evidence that the hundred or so “clone babies” currently in existence experience rates of illness, behavioral disorder, psychological difficulty, or abuse at the hands of parents, that are demonstrably higher than children conceived in the traditional fashion.

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After careful deliberation and consultation, Mary and Joseph have decided to remove Dolly from life-support. They have also decided that, prior to removing Dolly from life-support, they would like to take a healthy cell from Dolly’s body and have her cloned. They have based their decision in part on the belief that Dolly would want her genetic line continued, and in part on their feeling that a new child will help fill the void cause by Dolly’s imminent death. (Mary has already experienced menopause, and hence can no longer provide her own eggs for either natural conception or in vitro fertilization; technology does permit her to carry to term a cloned embryo implanted in her womb.) Mary’s and Joseph’s decision is also influenced by the fact that prior to the accident, Doily expressed an interest in becoming an infertility specialist, and had stated to her parents on several occasions that she saw nothing ethically wrong with the use of cloning either to help infertile couples conceive, or to facilitate a decision by grieving parents to reproduce a terminally ill infant or child. Dolly shared this view with a number of her friends, who are prepared to testify to that effect. According to the doctors at Bethlehem Medical, there is nothing related to Dolly’s medical condition that would prevent her from being cloned. Moreover, the technology required to carry out the procedure already exists in the infertility wing of the hospital. There’s only one problem: Futura is one of the 10 states that has banned human cloning. According to the hospital’s lawyer, the state defends the ban on the grounds that i) human cloning violates “the sanctity of life and the bonds of family that lie at the very core of our ideals and our society”; ii) human cloning “makes our children objects rather than cherished individuals,” and therefore opens the door to such potential abuses as the cloning of individuals solely for organ harvesting; and iii) children conceived through the cloning process “may experience psychological damage, ostracism or even discrimination as a class, outcomes which the state has an deep interest in preventing.” Moreover, the hospital lawyer has indicated that even if Mary and Joseph were willing and able to incur the additional expense and risk of transporting Dolly to another state in order to perform the cloning procedure, those states which permit human cloning all require proof of voluntary and informed consent from the individual who is to be cloned. An exception to this consent requirement exists where the individual to be cloned is a terminally ill minor, an exception that does not apply in Dolly’s case. In the hospital lawyer’s view, neither Dolly’s “living will” nor her general statements regarding cloning constitute sufficient proof for the purpose of meeting this consent requirement. Mary and Joseph come to your law office to discuss their options. Specifically, they ask you to answer the following two questions: 1) First, they would like to know whether the State of Futura’s indiscriminate ban on cloning violates either Dolly’s constitutional rights, or their own constitutional rights, under the “substantive” component of the Fourteenth Amendment’s Due Process Clause. You do not need to arrive at a definitive conclusion regarding these issues. Instead, make the strongest possible argument for each claim, then explore the weaknesses of each

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claim. Be sure to consider the possibility that Futura’s ban on cloning does in fact encroach on some constitutionally recognized rights, but is nevertheless constitutional. 2) Second, assuming Mary and Joseph decide to transport Dolly to a state that already permits human cloning, they would like to know whether they can mount a successful constitutional challenge to a possible state ruling that neither Dolly’s “living will” nor her general statements regarding cloning are sufficiently indicative of Dolly’s consent to permit the removal of her cells for cloning purposes. In answering this question, assume that under both the common law and statutory law of all states, Dolly’s general statements regarding cloning would not constitute “clear and convincing” evidence of her consent to be cloned, but might be considered evidence of consent under a “preponderance of the evidence” (that is, a “more likely than not”) standard. Part Two (ninety minutes) Splitsville is a large Northern city in the State of Wazoo, with a population that is approximately 45 percent black, 40 percent white, and 10 percent Latino, and 5 percent Asian. Like many urban centers, Splitsville has major problems with its public schools. Specifically, although the Splitsville school district has never operated a system of de jure racial segregation, the school district did enter into a federal consent decree in the early seventies, in response to a lawsuit alleging that it intentionally maintained a de facto system of segregated schools. Under the terms of the federal consent decree, the district was required to create a system of selective magnet schools throughout the city, with voluntary busing for those students interested in attending the magnet schools. The magnet schools were designed to both enhance opportunity for minority students and to promote an integrated learning environment for those students wishing to attend such schools. The school board was also required to institute a range of remedial education and counseling programs targeted at predominantly minority schools. In 1992, the school district was released from the consent decree after a finding that it had achieved unitary status. The magnet schools have been maintained, and the remedial programs first instituted under the consent decree have been folded into a more general remedial plan, whereby schools with high concentrations of poverty receive additional federal and state aid. These programs have not been sufficient to overcome segregated housing patterns and white flight from the public school system, however, and the goal of a genuinely integrated public school system remains elusive. More than half of all black public school students in Splitsville attend schools that are at least 90 percent black, and more than one third of all Latino students attend schools that are at least 90 percent Latino. The majority of students in the Splitsville schools perform well below national norms on standardized test, and the drop-out rate system-wide hovers at around 35 percent. Performance is even more dismal in the largely all-black and all-Latino schools, where only 10 percent of the students read at the national norm, and 45 percent of the students

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drop out before graduation. Statistics also reveal slightly higher drop out rates and lower test scores for minority boys than for minority girls. In response to this on-going educational crisis, two black members of the Splitsville School Board two years ago proposed the creation of a pilot all-black, all-male, career academy, to be called ‘Ujamaa School.” The mission of the school, according to the proposal, would be to “foster a spirit of discipline, self-respect, cooperation, and academic excellence among those youth most likely to underachieve.” The school would run from grades one through twelve, and would operate on an “immersion” model of “African-centered education”: while the curriculum would consist of the usual elementary and secondary school fare (i.e. reading, math, social science, etc.), these subjects would be taught using material that emphasize black history and culture in general, and black male achievement in particular. Extra-curricular activities would also be “African-centered,” and would include a mandatory “Rites of Passage” program for older boys that integrated physical education, spiritual training, and community service. The school would aim at staffing itself entirely with black male teachers, a cohort that constitutes a small minority (15 percent) of the system-wide Splitsville teaching core. No affirmative action would be employed in hiring of these teachers, however; indeed, hiring would be subject to all existing union rules regarding seniority and teacher assignment. On a per pupil basis, Ujamaa would not receive any more money from the school district than other non-magnet schools with a large percentage of poverty students. No teacher would receive any additional salary or benefits for teaching at the school, despite the fact that Ujamaa teachers would be expected to volunteer additional time and energy in order to staff and organize the school’s extensive extra-curricular program. Only fifty students per grade level would be admitted to Ujamaa, in order to assure small class sizes and personalized attention. Students from anywhere in the city could apply for admission, but Ujamaa would make special efforts to recruit students currently enrolled in those schools that are over 90 percent black and contain a large number of low-income or underachieving students. Admission would be non-selective; if the school was oversubscribed, students would be chosen by lottery. And, according to the proposal, admission would be non-discriminatory: that is, female and non-black students would be free to apply, and would be placed in the same pool -- with exactly the same chances of being selected -- as their black male counterparts. On the other hand, the proposal made it clear that the curricular emphasis on black culture and black male achievement would not be modified to accommodate female or non-black students. After a lengthy series of public hearings, during which large numbers of black parents and community leaders voiced support for the plan, the Splitsville School Board passed the Ujamaa proposal. Of the six member who supported the plan, four were black, one was white, and one was Latino. Of the three members who opposed the plan, one was black and two were white.

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Ujamaa School has been operating for over a year now, largely in accordance with the original proposal. All the students at the school are black males; indeed, no female or non-black students have thus far applied to the school. Only five of the thirty members of the faculty and administration at Ujamaa are women, and all are black. Again, no nonblacks have applied to teach at the school; the women who did express an interest in teaching at Ujamaa, and who were eventually hired, did so only after Ujamaa announced that the goal of an all-male faculty would not be met. Because the total number of students at Ujamaa is small, the race and gender composition of the student population at the other Splitsville schools has been largely unaffected. On the other hand, Ujamaa has soaked up a disproportionate number of the district’s black male school teachers. So far, students, parents, teachers and neighborhoods affiliated with Ujamaa are enthusiastic with the school’s results. Attendance at Ujamaa is much higher and tardiness much lower than at other majority black schools in the district; the drop-out rate is negligible. On last year’s standardized tests, Ujamaa students outperformed (albeit modestly) students at other majority black schools, although it is too early to tell whether these test results represent a trend. You are legal counsel to Mayor Muddles, the recently elected black mayor of Splitsville. Reporters have been asking her to respond to commentators from the left and the right who have criticized Ujamaa School as either a) an unconstitutional rejection of Brown v. Board of Education; b) a multiculturalist plot that puts education at the service of sectarian ideologies, or c) an exercise in patriarchy. The Mayor has called on you to help formulate a response. In particular, she asks you to answer the following questions: 1) Is Ujamaa School subject to challenge as unconstitutional racial discrimination under the Equal Protection Clause of the Fourteenth Amendment? In formulating your answer, you should discuss separately the strengths and weaknesses of possible claims brought by Splitsville’s black, white, Latino and/or Asian public school students. You do not need to discuss possible claims by Splitsville’s teachers. 2) Is Ujamaa School subject to challenge as unconstitutional gender discrimination under the Equal Protection Clause? Does it matter, in evaluating such gender claims, whether the students bringing the challenge are black or of some other race? Again, in answering this question, ignore possible claims by teachers. 3) Even if Ujamaa can survive a court challenge, is it good public policy? Put somewhat differently, in light of what you know about equal protection law and the history of race and gender discrimination in America, is the Ujamaa School a worthy attempt to promote long-term equality, or does instead represent a dangerous betrayal of the American ideal? In answering this question, feel free to argue both sides of the issue, but end by stating your considered opinion. Where appropriate, refer to cases you read way back when you were in Professor Obama’s Con Law class. END OF EXAMINATION

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CONSTITUTIONAL LAW III Final Examination

December 10 ,1998 9:00 a.m. to 5:00 p.m.

Autumn Quarter, 1998 Prof. Obama

Instructions

1. This is an open book exam. You may use any materials or notes used in our class. You may not refer to cases, articles, etc. that were not used in class. 2. You will have eight hours, inclusive of travel time, to complete the exam. The exam is designed, however, to be completed in three to four hours. Feel free to use the extra hours as you wish. 3. The exam consists of two Parts. In grading the exam, I will treat each Part as roughly equal in weight. The numbered questions within each part will be accorded roughly equal weight, although they are obviously interrelated and will be graded as such. In other words, don’t worry if your answer to one numbered question is longer or shorter than another. Just make sure that you have answered ail the questions in each Part. 4. I would greatly prefer that your answer be typed or word-processed. Assuming you type, you must double-space, use a 12-point font, and provide for at least one inch margins all the way around the page. This works out to roughly 435 words per page (five characters per word). Your answer must be no more than 12 pages (or roughly 5,200 words); I will stop reading after 12 pages. 5. If you really truly cannot type, or lack access to a word processor, then you may use a bluebook. Please write on only one side of each bluebook page, put your exam number on each bluebook, and remember to skip lines. The rough 5,200 word limit still applies. 6. Read each question carefully and think before you write. Please do not feel obliged to make use of the 12 page maximum in formulating your answers. Precision and imagination, rather than volume, is what counts. Good luck, and have a fine holiday.

Part One (One and one half hours) New Prosperity is the capital of Prosperity, a midwestern state in the United States. Like many medium-sized, midwestem cities, New Prosperity went through tough economic times in the 1980s, as manufacturing plants closed and high-tech industries located in surrounding suburbs. Also like many large midwestem cities, New Prosperity suffers from long-standing patterns of housing segregation: most of the thirty percent of New Prosperity’s population that is black resides in an impoverished enclave - known as Hardsville -- on the west side of town. In part, Hardsville’s racial isolation is the result of white flight and the limited economic means at the disposal of the black community. It is also well-documented, however, that Hardsville’s racial isolation arose in part due to decisions by a whitecontrolled city government prior to the seventies that were purposely discriminatory. Public housing was concentrated in the area, and the courts enforced restrictive covenants for many years. For years after blacks moved into the area, Hardsville did not receive its fair share of city services and school dollars. Roads and public transportation lines were routed to inhibit easy access between Hardsville and the rest of the city. Indeed, only one main transportation artery exists between Hardsville and the city’s center -- the six-lane Division Parkway, which runs east-west from one end of the city to the other, and carries not only vehicular traffic, but the city’s primary east-west bus line. There is no indication that the city continues to engage in overt discrimination. The current mayor, James Pleasant, is considered a liberal who has won over black voters by fairly distributing city services, hiring blacks to prominent administration posts, and financing affordable housing and commercial strip development in Hardsville. Nevertheless, patterns of segregation and black poverty remain deeply entrenched, and many Hardsville residents harbor a lingering suspicion that they are not welcome in the city’s more prosperous east side. Recently, the economy of New Prosperity has been on the rebound, driven largely by a surge in the service sector. A major symbol of that economic resurgence is the New Prosperity Mall, a state-of-the-art shopping complex built on the site of a former steel plant, on the north side of Division Parkway and lying about half-way between Hardsville and the more prosperous east side of town. With over a hundred stores and restaurants, an indoor garden and multiplex theater, the mall has become a regional attraction, bringing millions of dollars of business into the city, providing numerous retail jobs to city residents, and fattening the city’s tax base. The Pleasant Administration has garnered much of the credit for the mall’s success, since it was the Administration that put together the public-private partnership that got the project off the ground. To jump start the development, the city purchased the site five years ago and made it development-ready through the issuance of a general obligation bond, to be paid back out of the city’s tax revenues over twenty-five years. Then, after it was unable to sell the property to a developer outright because of the

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economic risks involved, the city entered into an agreement with Mogul Development Corporation, whereby a) Mogul would construct the mall for a hefty development fee paid out of bond proceeds; b) the city would retain ownership of the mall for a minimum two-year period, but would lease it to Mogul during this two-year period at a favorable (below market) rate; c) Mogul would in turn sub-lease the retail and restaurant space within the mall at whatever rents the market would bear: and d) at the end of the two-year "trial” period, Mogul could either terminate its lease, extend its lease under similar terms for an additional five years, or exercise an exclusive option to buy the mall from the city for a pre-determined price. Under the terms of the agreement, Mogul was to maintain almost complete control over management and day-to-day operations of the mall during the initial two year period, subject only to a set of provisions contained in all contracts with the city that, inter alia, prohibited Mogul from discriminating on the basis of race with respect to the various operations of the mall (i.e. employment decisions, the leasing of space within the mall, the treatment of persons patronizing the mall, the selection of contractors for janitorial and security services, the selection of suppliers, and so on). Also under the terms of the agreement, Mogul was required to include these anti-discrimination provisions in all of its sub-leases. Should Mogul choose to exercise its option to purchase the mail from the city, it would obviously no longer be subject to these lease terms, but would be subject to all city ordinances regulating businesses and property ownership, including a civil rights ordinance that prohibits all businesses within the city from discriminating on the basis of race, gender, etc. in terms essentially identical to those contained in the lease between Mogul and the city. By the end of the mall’s first two years, the results of the project exceeded the city’s most optimistic expectations. As a result of the mall’s success, Mogul exercised its option to buy, has owned and operated the mall free and clear (and very profitably) for the past year, and anticipates healthy profits for the foreseeable future. The city has recouped its development costs, and is servicing its general obligation bond out of the sale proceeds, rather than tax revenue; it has also not had any involvement whatsoever in the project (beyond providing basic services such as fire and police protection) since the sale to Mogul. Everybody seems just thrilled with this win-win situation. Well, almost everybody. Six month ago, a community organization called Hardsville Neighbors United filed suit in United States District Court, alleging that the city, in concert with Mogul, has engaged in a pattern of racial discrimination against black residents of Hardsville in violation of the Equal Protection Clause of the Fourteenth Amendment. There are two aspects to this claim. First, the complaint alleges that in designing the mall, the city, in concert with Mogul, deliberately failed to provide any safe and convenient access route for Hardsville residents who seek to travel by bus to the mall, and that the city and Mogul did so because they wanted to limit the number of blacks generally, and poor blacks in particular, who would patronize the mall. In support of this allegation, plaintiffs point out

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that the bus for passengers coming from Hardsville heading east stops on the south side of Division Parkway - that is, on the side away from the mall. There is no pedestrian overpass leading from the bus-stop directly to the mall, and the only cross-walk across the highway is located two full blocks away from the bus stop; from there, it is the equivalent of another two city blocks, across a large parking lot, to the mall’s main entrance. Not only does the lack of adequate access make it extremely inconvenient for even able-bodied passengers to visit the mall by bus (and almost impossible for the elderly and parents with small children to do so), but the lack of ready access to the mall from the bus-stop is also dangerous: already, at least one Hardsville teen has been killed by an on-coming car as she tried to race directly from the bus stop to the mail across the highway. Moreover, the plaintiffs allege that, while it is true that whites traveling from the east side of the city by bus theoretically suffer the same access problems - at least on their way home from the mall - as do blacks coming from Hardsville, statistics show that blacks in Hardsville are eight times more likely to travel by bus than are whites, and that the city was aware of these statistics when it and Mogul designed the mall as they did. The complaint’s second, related count alleges that since the mall opened, the city, in concert with Mogul and its sub-lessees, has systematically harassed and intimidated black shoppers so as to discourage their presence in the mall. More specifically, the complaint alleges that, both before and after the city’s sale of the Mall to Mogul, a) mall security guards hired by Mogul have been under instructions to stand near any congregation of black teenagers (but not white teenagers) in an effort to intimidate them and “move them along;” b) with the knowledge and encouragement of Mogul, undercover security guards and electronic surveillance operators employed by a number of individual stores in the mall systematically monitor and follow black customers as they shop, but do not subject white shoppers to similar treatment; c) on at least five occasions since the sale of the mall to Mogul, and on at least five occasion during the period that the city still owned the mall, black shoppers (but no white shoppers) have been falsely detained by Mogul security guards for shoplifting; and d) such discriminatory activity has occurred with the city’s knowledge and encouragement. The lawsuit is still in the preliminary discovery stages, and while no conclusive evidence of wrongdoing has surfaced on the part of either Mogul or the city, some troubling facts have already emerged: First, with respect to the bus stop allegation, it is clear that the city made conscious decisions not to build a pedestrian overpass from the existing bus stop to the mall, move the existing bus stop closer to the crosswalk, or route buses into the mall. The city planners involved in the process state that the reasons for these decisions were entirely non-discriminatory - an overpass would have required the purchase of land currently owned and operated by homeowners, and hence added significantly to project costs; moving the bus stop would have constituted a traffic hazard; and routing a bus through the mall would have impracticably lengthened travel times on the bus for Hardsville residents traveling to and from the city center.

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On the other hand, city planners do admit that they were aware, at the time they made their decision, of statistics showing blacks to be far more likely than whites to use the bus for shopping trips. They also acknowledge that contrary to normal procedures, the city did not conduct public hearings in designing the mall or traffic patterns in and out of the mall, but instead “fast-tracked” the project to ensure completion on schedule. Finally, staff has discovered a confidential memorandum from Mogul to the head of the city’s planning department, in which Mogul stated that “the types of persons traveling by bus - particularly those traveling from the western portion of the city -- do not meet the customer profile that the New Prosperity Mall should be trying to attract. In fact, they tend to be low-income teenagers without disposable incomes who desire to ‘hang out’ rather than shop and who tend to intimidate more upscale, target customer.” Although the head of the planning department denies that this memorandum was the basis for decisions regarding the bus stop, and insists that Mogul had no formal role in such decisions, he also admits that he “may have taken the memorandum into account” during the city’s internal decision-making process. As for the shopper harassment allegations, documents and deposition testimony indicate that since the city sold the mall to Mogul. two stores in the mall have maintained an explicit, albeit secret, policy of following and closely monitoring black, but not white, customers; there is no hard evidence, however, that the two stores maintained a similar policy, formal or informal, prior to the city’s sale of the mall. According to the documents and deposition testimony, these stores deny any disciminatory intent, but rather, felt justified in instituting these surveillance practices because of statistics showing that while only twenty percent of their paying customers were black, sixty percent of apprehended shoplifters were black. Testimony also indicates that certain Mogul officials were aware of this policy on the part of the two stores, but did nothing to cease, or even discourage, the practice. City officials point out that no customer complaints of discriminatory surveillance or harassment have ever been formally lodged with city, and that because of manpower shortages, it is the city’s general policy not to investigate any charges of discrimination absent a formal complaint. In other words, they did not closely monitor Mogul’s security operation during the period that the city owned the mall, and have not monitored Mogul’s activities at all since Mogul exercised its option to purchase the mall. They indicate that during the two-year period that the city owned the mall, they did become aware of complaints from some retailers that boisterous gangs of teenagers were scaring off customers, and that Mogul informed them of its policy of stationing security guards near such congregations of youth as a way of dealing with the problem. City officials insist, however, that they understood this policy to apply equally to black and white teenagers. They also indicate that during the period that the city owned the mall, they were made aware of two incident in which a black shopper was falsely accused of shoplifting and briefly detained by Mogul security guards; however, they viewed these incidents as honest mistakes, and not cases of racial bias.

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Finally, several city officials have indicated that they were aware, prior to the city entering into the original agreement with Mogul, that Mogul had been successfully sued under state civil rights statutes in an adjoining state for the harassment of black customers by Mogul security guards operation at a Mogul-owned mall in that state. Although city officials questioned Mogul about this lawsuit at the time the parties were still negotiating the deal, the head of the planning department states that his staff never independently investigated the merits of the suit, and that he was satisfied with Mogul’s explanation for the lawsuit: namely, that the discriminatory behavior which led to the lawsuit had occurred as a result of a few rogue security guards, and not as a result of any formal or informal Mogul policy. As might be expected, the lawsuit is turning out to be a huge embarrassment to Mayor Pleasant, and -this being an election year - he hires you, a hot-shot attorney at a blue-chip law firm, to provide him and the city’s lawyers with some high-priced legal advice. In a memo, he asks you to answer the following question: Assume all the facts obtained through discovery thus far are true. Assume further that some, if not all, of Mogul’s executives tolerated -- and perhaps even encouraged - the differential treatment of black customers in the mall by their security guards or their lessees/sub-lessees, but that the record is not clear on whether a) they did so on the basis of active animus towards blacks, b) an interest in pandering to white customers who they thought might be scared off by the presence of blacks at the mall, c) a genuine belief, based on their readings of the statistical data, that blacks were more likely to engage in disruptive or criminal behavior; or d) or some combination of motives. What is the likelihood that the city will be held liable for violating the constitutional rights of blacks under the Equal Protection Clause of the Fourteenth Amendment? In answering this question, please argue both sides of the issue and offer you considered conclusion on the ultimate outcome. Also, please be sure consider separately each of the two counts presented in the complaint (the bus stop count and the harassment count).

Part Two (One and one half hours) Eight years ago, Tony and Cleo married and settled in the State of Nirvana, a state in the United States. For over five years, the couple tried to have a child without medical intervention, but were unsuccessful. Doctors are uncertain as to why the couple failed to conceive in the traditional manner: Tony’s sperm count is normal, and although Cleo is thirty-nine, and hence near the end of her childbearing years, her reproductive system seems normal as well. Two years ago, Tony and Cleo decided to try invitro fertilization or IVF - a procedure that required a) Cleo to undergo a month long regiment of shots and orally administered fertility drugs (with some uncomfortable side-effects) to increase the production of harvestable eggs; b) the removal of the eggs from Cleo in a brief but

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invasive procedure; c) the fertilization of the eggs with Tony’s sperm in a laboratory; and cl) the transfer of the eggs back into Cleo’s uterus. The doctors explained to the couple that because the success rate of IVF is only 30 percent, the medical team attempts to harvest and fertilize as many eggs as possible at one time, but that they typically do not return all the fertilized eggs at once into the woman’s uterus; instead, those eggs not reintroduced in the woman’s system can be stored (frozen in cannisters) and used in later attempts at pregnancy. The first time Tony and Cleo tried the procedure, only four eggs fertilized, and although all of them were inserted into Cleo’s uterus, none of them “caught” on the uterine lining and resulted in pregnancy. The second time out, the doctors successfully fertilized eight eggs, and again introduced four into Cleo, freezing the other four. Unfortunately, the procedure again was unsuccessful. The financial and emotional strains of these failed attempts to conceive a child’ finally proved too great for the couple’s marriage to bear. Six months after the second IVF attempt, Tony and Cleo agreed, under relatively amicable terms, that they had grown distant from each other, and should get divorced. After the divorce was finalized, Tony moved to another state, got a new job, and entered into a serious relationship with another woman. In fact, he had not seen or spoken to Cleo for close to a year when he received a letter from her. In the letter, Cleo indicated her intent to use some of her divorce settlement money to try IVF one last time, using the four eggs (fertilized by Tony’s sperm) that remain frozen in the Nirvana fertility lab. Cleo pointed out that she is not currently in a relationship with a man, and because she is nearing menopause, these eggs may represent best chance at getting pregnant, particularly since she has neither the desire or financial resources to start the IVF process all over with an anonymous sperm donor. She concluded the letter by saying that she wished for Tony’s blessing, but was determined to go ahead with her plan, with or without his agreement. The letter came as a shock to Tony. Although he is sympathetic to Cleo’s plight, he feels very strongly that his life with her is behind him. Moreover, he has always held the belief that it is in a child’s best interest to be raised in an intact, two-parent family, a belief that grows partly out of his own experiences as a child who’s father abandoned the family when Tony was very young. In the event that Cleo does bear Tony’s child, he will not, because of the geographic and emotional distance that now exists between the two of them, be able to visit that child more than sporadically. Tony finds such a prospect simply unacceptable. As a result of these concerns, Tony has decided that he wishes to have to frozen embryos destroyed. Normally, the disposition of frozen embryos would be a matter of contract. Like most fertility clinics, Nirvana has a standard form that couples seeking IVF must fill out and sign prior to undergoing the treatment; the form specifically asks that the couple agree on what is to be done with unused embryos, and the fertility clinic will decline

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treatment if the couple (or, in cases involving donors, the provider of sperm and the provider of egg) cannot arrive at an agreement. Due to a clerical oversight, however, the form was never filled out or executed in Tony’s and Cleo’s case, and Tony cannot recall any discussions whatsoever between him and Cleo regarding the issue of what to do with unused, frozen eggs. As a result, neither the clinic nor a court would have any means by which to discern the former couple’s intentions at the time they initiated IVF. Tony hires your law firm to advise him on his rights, and to find a way for him to have the four frozen embryos destroyed. After discussions with Tony, the partner assigned to the case discovers that there is a Nirvana state statute which extensively regulates infertility clinics. One of the provisions in this statute states the following: “In the event that a dispute arises between that person providing the eggs and that person providing the sperm regarding the disposition of frozen, fertilized eggs, and that dispute cannot be resolved by reference either to a written or oral contract or by clear and convincing evidence of the parties’ intentions at the time the eggs were fertilized, then the fertilized eggs in question shall be destroyed, unless the egg donor desires to-have the fertilized egg implanted in her womb in an attempt to become pregnant, in which case such a-decision on the part of the egg donor shall be controlling.” (Italics added) The legislative history offers three rationales for the provision, rationales which the state claims “carefully balance the competing interests involved.” First, the state maintains that the provision serves the state’s “abiding interest in promoting life” by permitting women to chose to attempt a pregnancy using their fertilized eggs in the absence of an agreement between the parties and in the face of the male sperm donor’s objections. Second, the state claims that the provision recognizes the fact that women, for both biological and sociological reasons, are far more likely to be impacted by decisions regarding reproduction, and that it is therefore appropriate, absent an agreement between the parties, to resolve any dispute regarding the disposition of eggs in favor of the woman. Finally, the state claims that where the woman does not wish to be implanted with the eggs in question, a rule that the eggs should be destroyed absent an agreement between the parties serves the state’s interest in discouraging commerce in frozen embryos - commerce which, according to the state, both “debases the value in human life” and may lead to a wide range of custody disputes that are ultimately harmful to children produced through the IVF process. You are an associate at the law firm Tony has hired. The partner in charge of the case asks you to write a brief memo on the following two questions: 1) Can the Nirvana provision be challenged as a case of gender discrimination, in violation of Tony’s rights under the Equal Protection Clause of the Fourteenth Amendment? 2) Does the Nirvana provision violate Tony’s rights under the “substantive” prong of the Due Process Clause of the Fourteenth Amendment?

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In answering both questions, please discuss both the strengths and weaknesses of these potential constitutional challenges. Also, for purposes of answering these questions, you may safely assume, and need not discuss, the existence of state action on the part of Nirvana in promulgating and, where necessary, enforcing the provision.

END OF EXAMINATION

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CONSTITUTIONAL LAW III Final Examination

December 1999 9:00 a.m. to 5:00 p.m.

Autumn Quarter, 1999 Prof. Obama

Instructions

1. This is an open book exam. You may use any materials or notes used in our class. You may not refer to cases, articles, etc. that were not used in class. 2. You will have eight hours, inclusive of travel time, to complete the exam. The exam is designed, however, to be completed in three to four hours. Feel free to use the extra hours as you wish. 3. The exam consists of three Parts. In grading the exam, I will treat Parts One and Two as equal in weight. Part Three will count for only half as much as the other two; you should therefore allocate your time accordingly. Each part contains multiple questions; you should make sure that you answer all the questions contained in each part, although the questions within each part are obviously interrelated and each part will be graded as a whole. 4. I would greatly prefer that your answer be typed or word-processed. Assuming you type, you must double-space, use a It-point font, and provide for at least one inch margins all the way around the page. This works out to roughly 435 words per page (five characters per word). Your answer must be no more than 12 pages (or roughly 5,200 words); I will stop reading after 12 pages. 5. If you really truly cannot type, or lack access to a word processor, then you may use a bluebook. Please write on only one side of each bluebook page, put your exam number on each bluebook, and remember to skip tines, The rough 5,200 word limit still applies. 6, Read each question carefully and think before you write. Please do not feel obliged to make use of the 12 page maximum in formulating your answers. Precision and imagination, rather than volume, is what counts. Good luck, and have a fine holiday.

Part One (One hour) After completing a year-long appellate court clerkship and a well-deserved monthlong vacation in Fiji, you have finally settled into your work as a litigation associate at a well-regarded plaintiffs firm in the state of Nirvana. Most of the work involves medical malpractice and product liability lawsuits, but one day your supervising partner -- who knows your interest in civil rights work -- asks you to sit in on a meeting with a group of clients whom the firm is representing on an Equal Protection Clause claim. In the meeting, you learn that the ten clients - all African-American women of United States citizenship between the ages of twenty and forty - have a common tale to tell. At some point in the past year, each of them traveled overseas for business or pleasure. Upon the returning to the United States and attempting to pass through U.S. Customs, they were asked by customs agents to step out of the normal processing line and led a room, whereupon the agents pored over their luggage and personal effects in search of illegal drugs. When no drugs were found in their luggage or personal belongings, each of the women was then asked by the agents to submit to a strip search. All of the women objected at first, but uncertain of their rights and anxious to get through customs and into the arms of friends and family, they all ultimately acceded to the strip searches, which were performed by female customs agents. Again, in each case no drugs were found. Only after undergoing this humiliating ordeal were the women permitted to reenter the United States. Your supervising partner informs you that these ten women are part of a much larger class of African-American women who have apparently been forced to submit to strip searches by U.S. Customs agents over the past five years, and that initial discovery on the case has yielded the following facts. First, only a very small percentage of U.S. citizens entering the country during this period - black or white - were subjected to strip searches by customs agents; indeed, for the population as a whole, the number subjected to a strip search is less than one in one thousand (or 0.1 percent). Moreover, the percentage of persons subjected to strip searches who are actually found to be carrying drugs on their person is extremely low for all demographic groups: the "success rate” of these searches is less than 3 percent as a whole. Nevertheless, it appears that there is a significant statistical disparity between the percentage of blacks and the percentage of whites that are subjected to such searches. Specifically, it turns out that black women constitute the demographic group most frequently targeted by U.S. customs for strip searches: they are eight times more likely to be subjected to strip searches than are white men, are six times more likely to be subjected to strip searches than are white women, and are twice as likely to be subjected to strip searches than black men. This is despite the fact that the “success rate” for searches of black women has been only marginally higher than the “success rate” for searches of white women (1.8 percent compared to 1.6 percent), and has actually been slightly lower than the “success rate” for searches of both black and white men. In addition, there appears to be no identifiable difference or pattern with respect to where

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those persons that are searched were arriving from; in other words, it does not appear that the black women were more likely to be arriving from foreign locales known for originating drug traffic. Third, it appears that although customs agents are afforded some discretion in determining which disembarking passengers seeking entry into the United States will be subjected to extensive searches, agents are guided in making these determinations by a U.S. Customs manual and policy that purports to “profile” those persons most likely to be drug couriers. U.S. Customs has thus far resisted the disclosure of the actual “profiles” agents use, maintaining that the success of this “profiling” system depends in part on its secrecy (if drug couriers know what customs agents are looking for, the argument goes, then they will modify their “profile” to escape detection). However, your law firm has been able to obtain documents showing that the “profiles” used by U.S. Customs agents are generated by compiling law enforcement statistics on persons arrested and convicted of carrying drugs into the United States during the previous ten years, and then funneling the characteristics of these persons (race, gender, age, manner of dress, last point of departure, etc.) into a computer model. The U.S. Customs “profiles” are created with the help of Intrepid Inc., a private firm specializing in working up statistical “profiles” not only for law enforcement agencies, but also for private sector companies interested in marketing their products to particular population segments or in screening out potentially troublesome or unproductive job applicants. So far, Intrepid has refused to divulge the modeling program that it used in working up the drug courier profiles for U.S. Customs, claiming that their software is proprietary. Your law firm has obtained from U.S. Customs, however, the raw statistical data that was fed into the computer program. Preliminary analysis of the data by your experts indicates that black women were twice as likely as white women to have been caught smuggling drugs into the country during the ten-year period prior to the adoption of the “profiling” program; however, the raw data does not disclose the degree to which this resulted from a higher rate of black women being searched. The data also shows that while the percentage of all women apprehended for drug smuggling was lower than it was for men, women were somewhat more likely to have been caught carrying drugs on their person as opposed to in their luggage or personal effects. Beyond the statistics and information outlined above, there is no hard proof that the US. Customs service is actively discriminating against African-Americans. The agency maintains that its system of “profiling” is solely designed to curb the flow of illegal drugs into the country, and that its agents are trained and monitored to ensure that they carry out their duties in a fair and professional manner. Discovery has yielded one additional interesting piece of information, however: a memo, written early two years ago by a high ranking official within the agency to the head of the U.S. Customs Service, in which the official points out the racial and gender disparities in strip searches that have resulted from the profiling program and suggests that a thorough review of customs agency procedures be carried out promptly so as to avoid possible “political or legal fallout.” The memo also notes that although the agency has never been accused of

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discrimination in its hiring of customs agents, the fact that only 6 percent of all customs agents are black, and only 18 percent are women, make the disparities in strip searches “all the more troubling.” The documents indicate that no action was ever taken on this memo. After the meeting with your clients is over, your supervising partner asks you to work up a memo on the case. Specifically, she asks that you answer the following two questions: A. First, assuming that no “smoking gun” ever emerges indicating blatant discrimination on the part of either U.S. Customs or its agents in the manner in which it selects entrants into the United States for strip searches, please outline both the strengths and weaknesses of our clients’ claims that they have suffered both race and gender discrimination in violation of the Equal Protection Clause. In answering this question, recall that the Equal Protection Clause applies to the federal government through “reverse incorporation” of its principles into the Fifth Amendment; in other words, assume for this question that the Equal. Protection doctrine applicable to the federal government mirrors the doctrine applicable to state governments. Also, please do not concern yourself with search and seizure doctrine under the Fourth Amendment or issues of federal sovereign immunity law: just focus on the problems involved in making an Equal Protection claim. B. Second, assume for a moment that we are ultimately successful in our lawsuit, and a federal court rules that U.S. Customs has engaged in racial and gender discrimination with respect to the manner in which it selects persons for strip searches. Assume further that part of the court’s ruling is based on a finding that customs agents tend to engage in racial. and gender stereotyping in deciding which persons will be more extensively searched. To what extent could such a ruling serve as the basis for establishing an affirmative action program within the agency that would result in a higher percentage of black and female customs agents? In answering this question, please include some ideas as to how such an affirmative action could best be structured to survive constitutional attack. Part Two (One Hour) For the past decade, State Senator Bob Thomas, a senior Democratic member of the Nirvana General Assembly, has been one of the leaders of the state’s anti-abortion movement. A devout Catholic who also opposes the death penalty and champions the interests of children and the poor, Senator Thomas has introduced and passed a variety of bills designed to limit abortion in the state, including informed consent requirements, waiting period requirements, parental consent requirements, and a prohibition on the use of state funds for funding abortion services. Most recently, he passed legislation, signed by the Governor, that prohibits doctors from carrying out so-called “partial birth”

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abortions in the State of Nirvana; implementation of that law has thus far been stayed pending review of its constitutionality by the United States Supreme Court. Since visiting a neo-natal unit in an urban hospital last year, and observing first hand the devastating and long-term effects of drug use by pregnant women, Senator Thomas has decided to broaden his concern beyond abortion. This past session, Senator Thomas successfully passed through the General Assembly what he dubbed the “Head Start for Life” bill. The legislation’s preamble states that the purpose of the bill is to ensure that “all children in the State of Nirvana get the best possible start in life” in light of the growing body of scientific evidence regarding the importance of prenatal care, and further, that the bill will, “protect the public fisc from the enormous expenditures” devoted to the costs associated with premature births, low birth weight babies, dysfunctional behavior by children, and so on. The provisions of the bill are relatively simple. The first, and perhaps least controversial, aspect of the bill, enhances criminal penalties for those persons who knowingly sell illegal drugs to pregnant women. The second provision modifies mandatory sentencing laws so as to require judges to incarcerate in a specially equipped facility any pregnant woman arrested for illegal drug use for the duration of her pregnancy. (Prior to the passage of this provision, pregnant women who were caught using drugs were treated like any other offender, so that if, for instance, they were first time offenders, there was a strong likelihood that through plea bargaining or the exercise of judicial discretion, they would be given probation subject to enrollment in a drug treatment center,) It is the third provision, however, that has raised the most hackles. This provision prohibits a) the purchase or use of cigarettes or alcohol by pregnant women; b) the knowing sale of cigarettes or alcohol to a pregnant woman by any retail establishment or restaurant; and c) the purchase of cigarettes or alcohol by a third party with the intent of providing these substances to a pregnant woman. Violation of any part of the provision will result in a hefty fine. As one might imagine, the “Head Start for Life” bill, which is the first of its kind in the nation, has set off a firestorm of controversy. The fact that Senator Thomas was able to push it through the General Assembly testifies to his legislative skills and political clout, given the vigorous opposition of not only the National Organization for Women but also the Retail Merchants Association, the tobacco lobby, and the liquor lobby. It didn’t hurt that he had the support of the American Cancer Society, the Coalition for a SmokeFree Society, and several pediatric organizations. The bill has now landed on the Governor’s desk, and although the Governor considers himself pro-life and has supported Senator Thomas’ bills in the past, he thinks that the Senator may have gone too far this time, and would like to veto the bill. On the other band, the Governor does not want to offend such a critical political ally right before election time, and is looking for political cover. He calls you, his crack constitutional law

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expert, into his office, and asks you to write a memo that evaluates whether the “Head Start for Life” bill violates either the Equal Protection Clause or the “Substantive” Due Process Clause of the Fourteenth Amendment. In writing the memo, assume that the following are true; a) that the use by a pregnant woman of any of the proscribed illegal drugs mentioned in the legislation does in fact have a severe and lasting impact on the development of a fetus, and impact that extends beyond birth; b) that although the consumption by a pregnant woman of cigarettes and alcohol may be less severe than, say, crack cocaine, the adverse affects on the fetus are both demonstrable and significant, and may likewise extend beyond birth. In addition, please focus your discussion solely on Fourteenth Amendment issues raised by the bill, and not on any criminal law issues (i.e. the possible difficulty in proving intent) that might arise were the Governor to sign the bill. Part Three (Half an Hour) In discussing the on-going controversy with respect to the Supreme Court’s “substantive due process” jurisprudence, Professor Cass Sunstein makes the following observation: The received wisdom is that Lochner was wrong because it involved “judicial activism.“. . . [But it is possible] to understand Lochner from a different point of view. For the Lochner Court, neutrality, understood in a particular way, was a constitutional requirement. The key concepts here are threefold: governmental inaction, the existing distribution of wealth and entitlements, and the baseline set by the common law. Governmental intervention was constitutionally troublesome, whereas inaction was not; and both neutrality and inaction were defined as respect for the behavior of private actors pursuant to the common law, in light of the existing distribution of wealth and entitlements.. . . [If] Lochner is understood in these terms, its heirs are not [cases like] Roe v. Wade, but instead such decisions as Washington v. Davis,. . .Regents of California v. Bakke, and various cases immunizing those who are thought not to be “state actors” from constitutional constraints. Is Professor Sunstein correct in his description of the Lochner legacy’? And if so, what conclusions would you draw with respect to whether or not the Supreme Court’s approach to “substantive due process” since Lochner properly balances issues of individual liberty, majority will, and judicial authority? In briefly answering this question, do not be afraid to stake out a personal position; do try, where appropriate, to bolster that position with examples of particular cases that we covered during the course. END OF EXAMINATION

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CONSTITUTIONAL LAW III Final Examination

December 2001 9:00 a.m. to 5:00 p.m.

Autumn Quarter 2001 Prof. Obama

Instructions

1. This is an open book exam. You may use any materials or notes used in our class. You may not refer to cases, articles, etc. that were not used in class. 2. You will have eight hours, inclusive of travel time, to complete the exam. The exam is designed, however, to be completed in three hours. Feel free to use the extra hours as you wish. 3 . The exam consists of two Parts, presented in four pages. In grading the exam, your answer to Part One will count for three-fifths of your grade, and you answer to Part Two will count for two-fifths of your grade. You should therefore allocate your time accordingly. Each part contains multiple questions; you should make sure that you answer all the questions contained in each part, although the questions within each part are obviously interrelated and each part will be graded as a whole. 4.

I assume that all exams will be written on a computer or word-processor. You must double-space, use a 12-point font, and provide for at least oneinch margins all the way around the page. Your answer must be no more than 2,200 words; I will stop reading after 2,200 words.

5 . Read each question carefully and think before you write. Please do not feel obliged to make use of the maximum number of words in formulating your answers. Precision and imagination, rather than volume, are what I am looking for. Good luck, and have a fine holiday.

Constitutional Law III - Fall 2001 - Final Examination

Part One (One and one-half hours) On January 11, 2002, a renewed wave of terrorist attacks begins in major cities across the country. Specifically, a deadly airborne (but non-contagious) chemical toxin called rioxin is released into the ventilation systems of high-rises and shopping malls throughout the east and west coasts. Trucks containing the hazardous material are purposely crashed inside major tunnels. Rioxin is released throughout major subway lines, and letters and parcels contaminated with the material are discovered throughout the postal system. In the first month of these attacks, an estimated 50,000 people are killed. An additional 500,000 people are infected with rioxin, and are inundating hospitals throughout the country seeking treatment. As in the case of anthrax, persons infected by the rioxin spore can be effectively treated - in the case of rioxin, with an antibiotic called Curasin - so long as they receive the antibiotic within 36 hours of exposure to toxin. Moreover, the same company that manufactures Curasin has announced the development of a rioxin vaccine that, once administered, protects the person vaccinated from the most serious forms of rioxin infection for a ten-year period. The vaccine appears to be highly effective for all segments of the population. There are two significant problems, however, with implementing an immediate vaccination program for the entire U.S. population. First, because the vaccine is new and because it is both expensive and time-consuming to produce, there are currently only 5 million doses of the vaccine available. Despite the intention of the federal government to drastically ramp up production of the vaccine, it is anticipated that for at least the next year, no more than 10 million doses of the vaccine can be produced every month. The upshot is that, optimistically, only 40 to 50 percent of the United State’s 270 million or so residents can be effectively vaccinated within the year. Second, it appears that not all populations are similarly vulnerable to the rioxin spore. For reasons that scientists cannot yet fully explain, blacks are 15 percent (1.15 times) more likely to die from similar levels of rioxin exposure than are whites. Latinos also seem to have a somewhat higher mortality rate than whites, although given the variation in racial make-up within the latino population, the evidence with respect to their enhanced vulnerability is less conclusive. There is very preliminary and hotly debated evidence that slight genetic variations between blacks and whites may account for the different mortality rates between blacks and whites exposed to rioxin. Other experts attribute the difference solely to the preexisting disparities in the health of blacks and whites, disparities that themselves are largely attributable to such socio-economic, environmental and behavioral factors as higher rates of poverty, smoking, obesity and hypertension among black populations. Differences in mortality rates exist between men and women as well. It appears that women are 18 percent (1.18 times) more likely to die from similar levels of rioxin

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Constitutional Law III - Fall 2001 - Final Examination exposure than are men. Experts attribute this difference primarily to the differences in average body mass between men and women, an explanation that appears consistent with the fact that children under the age of 13 are 25 percent (1.25 times) more vulnerable to death from similar levels of rioxin exposure than are adults. The elderly are also more vulnerable to rioxin exposure than the general population, although the differences between old persons and young persons appear to correspond directly to the general, preexposure, health of the individual involved. In light of this on-going crisis, the White House, in consultation with the Center for Disease Control (the CDC), has decided to develop a strict protocol for dispensing the Curasin vaccine. The draft protocol is as follows: 1) The CDC’s first priority will be to vaccinate all children under the age of 13, starting with those children living in densely population metropolitan areas that so far have been the primary focus of terrorist attacks, and fanning outward to children living in less populated, rural areas. The CDC’s second priority will be to vaccinate all adult women under the age 2) of 50, again starting with women living in densely populated areas and fanning outward to women living in less populated, rural areas. 3) The CDC’s third priority will be to vaccinate all adult men under the age of 50, with the same geographical prioritization. 4) All remaining adult U.S. citizens will then be vaccinated, starting with 50. year-old adults and advancing progressively up the age ladder. 5) Only after all U.S. citizens have been vaccinated will the CDC vaccinate legal resident non-citizens, using the same demographic protocol as has been developed for U.S. citizens. Illegal immigrants will receive the vaccine only after all other segments of the population have been immunized and supplies of the vaccine have stabilized. 6) Throughout the administration of this vaccination protocol, the Curasin antibiotic (of which there is an ample supply) will continue to be made available to all persons exposed to rioxin based solely on the judgment of onthe-scene medical personnel, and without regard to age, gender, geography, or citizenship. White House Counsel has already advised the President that -- given the magnitude of the emergency and the U.S. Government’s Declaration of War on the terrorist rings carrying out the attacks - the Supreme Court won’t dare to find the proposed protocol unconstitutional. Nevertheless, the President recognizes the potential volatility of the issue, and wants to assure himself, Congress, and the public at large that his proposal conforms to constitutional norms. You, the Assistant to White House Counsel, are therefore asked to prepare a memorandum for the President, to be presented to him this afternoon. Specifically, the President wants to know whether any of the provisions of the proposed protocol violate the Equal Protection Clause of the Fourteenth Amendment (recall that, through a process of reverse incorporation, the Equal Protection Clause applies to the federal government as

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Constitutional Law III - Fall 2001 - Final Examination well as the states). In framing your response, you may (and probably should) devote more attention to some classifications/issues presented by the protocol than you do to others. Please make sure, however, to support all conclusions with reasoning and, where possible, case law. In addition, please make sure to examine both sides of any argument you make, and feel free to suggest changes to the protocol that will cure it of potential constitutional problems. Part Two (One hour) After five years of marriage, Maria, a corporate attorney, and Arnold, an international financier, have decided it’s time to conceive their first child. It is not an easy decision for them. Both have high-octane careers that take them traveling throughout the world, and both passionately engage in (and excel at) a variety of athletic, intellectual and artistic pursuits: Maria is a former Olympic skier and an accomplished pianist, while Arnold is a world-class triathelete and chess master. In light of the sacrifices involved in rearing a child, both Maria and Arnold agree that they should optimize their outcomes with the aid of technology. Specifically, they have been reading up on recent advances in biogenetics that now permit parents with sufficient financial means to “design” their babies in advance. Not only is it possible to screen fertilized eggs so as to select the sex of the child and weed out any embryos containing congenital diseases, but parents can now also work with their geneticist to maximize the chances of producing babies of a certain hair-color and size. Moreover, it is anticipated that within the next five years, scientists will even be capable of isolating the genetic sources of such characteristics as mathematical aptitude or athletic prowess, which will then be available on the prospective parents’ menu of choices. After performing their due diligence, Maria and Arnold have identified Bionetics, a French multinational corporation that just recently went public, as a leader in the field of baby design. After consultation with Bionetics representatives and extensive discussion of the genetic characteristics they want in their offspring, they are prepared to pull the trigger on the deal. There is only one snag: it appears that Congress, led by former televangelist and current U.S. Senator James Fullsome, has just passed a law, titled the Prevention of Genetic Abuse Act (PGAA), which prohibits all genetic engineering and screening of embryos in the United States -- including engineering and screening for purposes of sexselection and the detection of potential genetic defects in the embryo. The text of the PGAA asserts three primary concerns as justification for the statute. First, although the genetic procedures that have been banned in the United States are now common-place in Europe, and the resulting genetically-engineered and/or screened babies appear perfectly healthy, the technology involved is far too new for scientists to draw meaningful conclusions with respect to the long-term health implications for the resulting babies. Consequently, the PGAA maintains that the ban is necessary to protect the health, safety and welfare of the general public, and facilitate

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Constitutional Law III - Fall 2001 - Final Examination further study regarding the potential health risks involved for genetically engineered children. Second, the PGAA maintains that, given the growing demand for genetic engineering services and the high costs involved in the effective genetic screening and modification of embryos, such procedures are sure to invite unscrupulous and unqualified service providers into the industry, with a correspondingly high incidence of consumer fraud. Moreover, given the still imprecise nature of even the most effective screening and modification techniques, the commercialization of the technology is sure to invite a floodgate of litigation between genetic engineering firms and parents who end up disappointed in the outcomes of genetic engineering services. Third, the PGAA maintains that genetic engineering “debases the miracle of life” by encouraging a view that some human beings are preferable to others. According to the statute, the state has a legitimate interest in preventing the spread and acceptance by the general public of a “culture of eugenics.” During legislative debates on the bill, however, Senator Fullsome repeated his assertion that any form of genetic screening or engineering was “in violation of both nature’s mandates and God’s law.” On the other hand, the legislative history of the PGAA also indicates that while much of the testimony in support of this “moral and ethical” interest was voiced by religious leaders and organizations, specific concerns regarding the dangers of genetic sex-selection were also raised by some women’s organizations. Indeed, evidence from outside the United States indicates that where genetic engineering is utilized for purposes of sex-selection, male children are selected over female children by a two-to-one margin. Maria and Arnold are incensed by the PGAA. Although they can afford to fly to Europe to take advantage of Biogenic’s facilities there, it will involved significant disruption of their already tight schedules. Moreover, Maria and Arnold are fierce libertarians, and see no reason why the government should be intruding on such highly personal decisions. They therefore approach the national executive director of the ACLU, and indicate that they are willing to finance a test case (their own) challenging the constitutionality of the PGAA if the ACLU is willing to take the case. The executive director tells Maria and Arnold that she will consider it, and asks you, her trusted staff attorney, to prepare a brief memo examining the possible constitutional claims available to Maria and Arnold under the Due Process Clause of the Fifth Amendment (again, remember that through the process of “reverse incorporation,” the constitutional requirements of qua1 protection and substantive due process embodied in the Fourteenth Amendment apply to the federal government by way of the Fifth Amendment). In preparing your analysis, make sure to examine both the strengths and weaknesses of any possible claims. Moreover, please provide your boss a strategic analysis of how a ruling in this area might affect the U.S. Supreme Court’s approach to such existing constitutional rights like abortion. END OF EXAMINATION

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Constitutional Law III Part One Geography Classifications I start with this classification, not because it is the most difficult constitutionally, but because it is the most pervasive of all the classifications. As cases such as Sugarman and San Antonio School District discuss, “suspect” status is generally reserved for those groups that are discrete, insular minorities, have a history of being discriminated against, and have immutable characteristics. It does not appear that either rural or urban citizens meet our standard “suspect” criteria. If neither of these groups is a suspect class, then the classification need only be “rationally related to legitimate [federal] interest.” New Orleans v. Dukes. Although the rationale for the classification is not stated in the facts, it need not necessarily be. As FCC v. Beach Communications makes clear, the Court will typically uphold the statute “if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” Under this theory, the government could certainly contend that it makes sense to give urban women the vaccine before rural women, given the higher probability of a terrorist attack in the cities. So we would probably conclude that the classification is probably constitutional as applied to rural and urban people within each particular subset of people. But if the justification is that urban areas are high risk while rural areas are low risk, then why are they giving vaccines to rural children before giving vaccines to urban women, men, or elderly? If there is only vaccine enough for half the population, then it is almost certain that all the vaccine will be used up (by urban and rural children and women) before any men or elderly are vaccinated (even urban men and elderly). This looks completely arbitrary and nonsensical, and because of this, the Court might conclude that it fails even a rational basis test. See Moreno. The government can fix this problem by putting all rural groups (same order of preference) after all of the urban groups. Age Classifications There are two different age classification made by the protocol. Children are given first priority while the elderly are given less priority. Traditionally, neither children nor the elderly (Murgia) are suspect classifications. Children sometime get special protection, see Plyler and Gomez, but they seem to be getting that protection here (they are actually benefitting), so they do not have a claim. Children could claim that the cut-off age of 13 is over/under inclusive, but under rational basis review the government can make rough calculations for the sake of administrative costs. NYTA v. Beazer. The elderly are not a suspect class, as Murgia points out. Thus, rational basis review is appropriate. But it is hard to come up with a legitimate interest that is being furthered by putting them below children and younger men and women. The government admits that elderly are more vulnerable to rioxin exposure than the general population, so it is not a good administrative expediency line. Thus, the only purpose that seems to be furthered by this classification is one that borders on eugenics. This hardly seems a legitimate one (unlike, say, maintaining a physically vigorous police force by way of a mandatory retirement age), so this classification likely does not pass rational basis review. Gender Classifications This situation presents a case of facial reverse discrimination, that is, men are the ones disadvantaged. Califano v. Goldfarb states that reverse discrimination will be subject to intermediate scrutiny, just like regular gender discrimination. Under the intermediate scrutiny

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Constitutional Law III test, the government must have an “exceedingly persuasive justification” (at least to satisfy the more liberal Court members) to validate a facially discriminatory classification. VMI. The fact that they are 18% more likely to die from exposure than men indicates that there might be “real differences” at stake here. The Court has upheld classifications based on real differences in several cases, including Michael M and Rostker. On the other hand, equal protection protects individuals, not groups, and it seems likely that there are at least some men that might be as vulnerable as some women. This is unlike childbirth, where only women are subject to the risk. Men might argue, in fact, that gender has nothing to do with vulnerability. Instead, the relevant factor is body mass. This argument would also be true for children. But unlike the case with children, here we are in heightened scrutiny land, and if there is a more narrowly tailored standard that gets at the real factor, one would argue that the government should seize on it. Maybe this protocol is just reinforcing archaic stereotypes of women as small and dainty. The argument against having a more tailored body mass approach is that it would be unduly costly, especially when/if gender is a pretty good proxy. I do not see how determining body mass would be much more costly than determining gender, but I could be wrong. Honestly, I would not like to wager money on how the more liberal justices would come out on this. One thing I do know: there is little doubt that Scalia and company would be on board with this. In VMI, Scalia said that intermediate scrutiny should allow the government to make some generalizations, albeit not overly crude ones. Rehnquist thought that the statute in Craig v. Boren was OK, so he too would uphold this classification. Race Non-Classifications Here, we have the flip problem of the gender classification. There is evidence to suggest that blacks are more vulnerable than whites, yet they are not protected more. Blacks might argue that even though the current classification is facially neutral, it has a disparate impact on blacks. To prevail on this claim, they would have to show an invidious purpose to harm blacks. Washington v. Davis. As McClesky demonstrates, this would likely require a showing of “butfor” causation. This is a hard standard to meet, and it probably can’t be met here. If this is true, then the statute will be evaluated under rational basis review, and we know the likely result of that. This is especially a hard case for blacks in light of the other alternatives the government had available. Even with the vulnerability evidence, a facial classification that blacks be given priority would be a tough sell to the Court. The Court is hesitant to uphold any facial classification on the basis of race (Palmore), which supports the administration being agnostic on the issue. If there was strong evidence that this was genetic (such as sickle cell anemia), then the Court might uphold a facial classification. But the fact that the government could have enacted such a classification is far different than saying that the Court will legislatively impose this. The only other way for blacks to make the case that such a beneficial classification is necessary, would be if it made up for specific discriminatory practices of the past. Adarand. At best, blacks Rioxin vulnerability has been caused by societal discrimination which has contributed to their current socio-economic and health status. But societal discrimination is insufficient under Adarand to justify a facial preference for them. The alternative argument for individualized assessments is much more problematic in this context than in the gender context. It would require almost a complete physical to determine their state of health (since it is not directly related to body mass with blacks), a costly venture. It

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Constitutional Law III seems that the administration’s policy of not making distinctions on the basis of race is probably the safest under current precedent and in light of the unclear scientific record. Alienage Classifications Sugarman indicates that aliens will be treated as a suspect class and receive strict scrutiny from state regulation. However, Congress has almost carte blanche to regulate aliens in whatever way it desires. Does this same rationale apply to the executive branch of the federal government? Probably. They are responsible for foreign policy and relations and the Court is hesitant to get involved with things that arguably involve foreign affairs or political questions. The Court has previously upheld acts of the federal government that deny aliens medical benefits, and this would appear to fall within that category. Although the policy might seem unduly harsh, it is tempered by the fact that aliens will receive Curasin. Words = 1369

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Constitutional Law III Part Two Genetic Engineering as a Fundamental Right Maria’s argument is that the right to genetically control her potential offspring involves the “fundamental right” to procreate. The Court first found this right to be fundamental in Skinner, which was actually decided under the Equal Protection Clause. Subsequent cases, however, affirmed this right, sometimes calling it the “right to privacy,” under the due process clause. See Griswold, Eisenstadt, Carey, and Roe. This right is especially sacrosanct within the confines of marriage, Griswold, although subsequent cases rely less heavily on the marriage distinction. The Court has recently tried to cabin the expansion of the fundamental rights category. They have done this under the cover of tradition. See Bowers, Michael H. Justice Scalia is the torchbearer for this theory, and he would look to see whether genetic engineering is “deeply rooted in the Nation’s history and traditions.” Under the narrow definition of tradition that Scalia employs, genetic engineering has neither a history nor a tradition. Although a majority of the Court has endorsed Scalia’s view in cases like Bowers and Glucksberg, it is not clear that the majority would agree with Scalia here. The Court rejected such a cramped reading of tradition in Casey, and at least one justice (Souter, dissenting in Glucksberg) has endorsed the idea that “tradition is a living thing.” In addition, it seems that tradition has the most bite when the history and tradition was to prohibit the thing that is now sought to be protected. See Bowers, Glucksberg. Here, there is not a history of criminalizing genetic engineering. Under this theory, “silence of tradition” is not damning to the right sought by Maria. If this is true, then the right asserted in this case looks like a close cousin to the rights previously protected in Griswold and its progeny. If Maria can successfully frame this as a fundamental childbearing right, then the statute will be subject to strict scrutiny, or at the very least the “undue burden” balancing test formulated in Casey. The government would then have to come up with a “compelling state interest” to justify its “narrowly tailored” statute. If it is not a fundamental right or an “interest” subject to balancing, then the government’s interest must only pass rational basis. Government’s Interests The government puts forward three interests: 1. Protect the health, safety and welfare of the general public – Without some evidence of negative health effects, it seems unlikely that a Court would uphold the ban on genetic engineering under strict scrutiny (and perhaps even rational basis). In fact, this technology seems to improve the long term health of babies by ruling out eggs that carry certain deformities. This rationale is a loser. 2. Protecting against unscrupulous and unqualified service providers – This is a compelling state interest, but a complete ban is not “narrowly tailored” to meet the parade of horribles that the government suggests. The government can set qualifications for doctors, etc. But under a strict scrutiny test, a complete ban will fail. Under rationale basis a program need not be tailored narrowly, and this justification might be sufficient to uphold the statute. 3. Debasing of Human Life – “If a statute burdens constitutional rights and all that can be said on its behalf is that it is the vehicle that legislators have chosen for expressing their hostility to those rights, the burden is undue.” Stenberg. This rationale seems to by and large track the “moral opposition” rationale to abortion, which has failed. Additionally, as terrible as it might seem that parents are “choosing” the gender of their children, parents essentially already possess this capacity through the abortion right: A parent, if they want, may abort a

4/5

Constitutional Law III fetus simply because it is the wrong sex. In a sense, ex ante genetic engineering seems preferable ex post abortion. Under a strict scrutiny or balancing test, I believe that the government’s 2nd justification would support some regulation of the field, a la Casey, but not a complete ban. If the Court finds that genetic engineering is subject to rational basis (that is, not even a liberty interest sufficient to warrant a Casey/Cruzan balancing test) then I think that the state’s 2nd justification is probably rationally related to achieving a legitimate state interest. Affect on Other Rights Taking this case comes with some risks. If the Court finds that there is no fundamental right to genetic engineering (this is a real possibility in light of the Court’s recent reliance on tradition), it might weaken the underpinnings of a right to an abortion. Since the right to an abortion has been slowly eroding, it might not be wise to risk even further erosion. Another thing to consider is the likely galvanizing effect this might have on conservatives around the country. Since this is a hot-button issue, a win for the ACLU could have the same effect as Webster (except for the other side). This could potentially have a dramatic effect on the political and judicial landscape for a number of years. Words = 830

5/5