Constitutional Law Examination: Spring Semester 2003 - Professor Fenner, Exams of Constitutional Law

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CREIGHTON UNIVERSITY SCHOOL OF LAW

CONSTITUTIONAL LAW SPRING SEMESTER EXAMINATION

Professor Fenner Monday, May 5, 2003

PART I Page 1 of 4

INSTRUCTIONS: THIS IS A CLOSED BOOK EXAMINATION. BOOKS, STUDY NOTES, OUTLINES, AND ANY OTHER MATERIALS ARE NOT PERMITTED IN THE EXAMINATION ROOM. PLACE THE LAST THREE DIGITS OF YOUR EXAM NUMBER, YOUR SECTION, YOUR PROFESSOR'S NAME, AND THE COURSE TITLE ON EACH ANSWER BOOK. IF YOU USE MORE THAN ONE BOOK, NUMBER THEM 1 OF 2, 2 OF 2, ETC.

PART I CONSISTS OF THREE (3) QUESTIONS.

READ EACH QUESTION CAREFULLY, AND BE SURE THAT YOU ANSWER THE QUESTION ASKED.

DO NOT GET STUCK ON ONE QUESTION AT THE EXPENSE OF OTHERS. DO NOT GET STUCK ON ONE PART OF THE ANALYSIS OF ONE QUESTION AT THE EXPENSE OF OTHER PARTS.

UNLESS SPECIFICALLY ASKED TO DO SO, DO NOT CONFINE YOUR ANSWER TO ONE ISSUE OR TO ONE PART OF ONE ISSUE JUST BECAUSE YOU BELIEVE RESOLUTION OF THAT POINT MIGHT BE DISPOSITIVE IN ACTUAL LITIGATION.

AVOID RELYING ON CONCLUSORY STATEMENTS. UNLESS OTHERWISE STATED, I AM LOOKING FOR ANALYSIS OF THE LAW AND THE FACTS. FOLLOW THROUGH ON YOUR ARGUMENTS, ROOTING THEM IN THE FACTS GIVEN AND THE RELEVANT PRINCIPLES OF CONSTITUTIONAL LAW.

Professor Fenner Monday, May 5, 2003

PART I Page 2 of 4

QUESTION NO. 1: (Suggested Time, 10 Minutes)

Describe the test that is applied in cases where the plaintiff has made a prima facie case of a violation of his or her right to procedural due process. Explain your answer as fully as you can in the time allotted.

QUESTION NO. 2 BEGINS ON THE NEXT PAGE

Professor Fenner Monday, May 5, 2003

PART I Page 3 of 4

QUESTION NO. 2: (Suggested Time, 45 Minutes)

You are the federal district court judge presiding over the lawsuit described below. You will be asked to resolve this issue and fully explain your resolution.

By state statute, California had a bilingual education program under which elementary school students with a limited proficiency in the English language were taught in their native language. On June 2, 1998, California voters voted on and passed into law Proposition 227 (hereinafter “Prop 227”). Prop 227 is the result of an initiative drive. It passed into law by a margin of 61% of those voting casting a “yes” vote to 39% casting a “no” vote. Prop 227 does away with bilingual education and replaces it with a system of “structured English immersion.”

Prop 227 states that “children in California public schools” shall be “taught English by being taught in English.” It defines the immersion system as “an English language acquisition process for young children in which nearly all classroom instruction is in English but with the curriculum and presentation designed for children who are learning the language.” It does not prescribe a specific curricular program to be used during this year of “immersion.” Prop 227 provides that “limited English proficient” (hereinafter “LEP”) students who are of similar English proficiency shall be taught together and that “children who are English learners shall be educated through sheltered English immersion during a temporary transition period not normally intended to exceed one year.” Once LEP students become proficient in English, they are transferred into mainstream English language classrooms.

For the most part, the State of California has a system where local school authorities have broad discretion over the formulation of educational policy. Prop 227 enacts a statewide rule regarding the education of LEP students.

Prop 227 allows LEP students to receive waivers from English immersion in three circumstances: (1) when the student “already speaks English” [which is an odd provision because a student who speaks English would not seem to be an LEP student in the first place]; (2) when the student is 10 years old or older and the school and the student’s parents or guardian agree that an alternative curriculum would better serve the student’s English education; or (3) when the student has been in the special immersion program for at least 30 days and the school determines that the child “has special physical, emotional, psychological, or educational needs,” and that an alternative curriculum would better serve the student’s educational development. No student can receive a waiver without parental consent.

This law has been challenged in federal district court. The lawsuit has been brought on behalf of students who are LEP students and would have been educated in the bilingual education program that preceded Prop 227. The plaintiff’s allege that Prop 227 violates their right to equal protection of the law.

You are the federal district court judge who has this case. Decide the equal protection issue and fully support and explain your decision.

Professor Fenner Monday, May 5, 2003

PART I Page 4 of 4

QUESTION NO. 3: (Suggested Time, 35 Minutes)

In this case, you are the attorney for the plaintiff. In the end, you will be asked to make the best argument you can on her behalf.

At the time relevant to this lawsuit, Sheriff Bascomb Locus Hooker was the sheriff of Stoddard County, Missouri. Sheriff Hooker and Stoddard County have been sued in federal district court by a woman named Naomi B. Leslie. The suit was filed pursuant to 42 U.S.C.

42 U.S.C. § 1983 provides as follows:

Every person who, under color of [state law] subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges or immunities secured by the Constitution and laws shall be liable to the party injured…

At least in the context involved in this case, assume that the Supreme Court has interpreted “under color of [state law]” to be synonymous with “state action.”

The facts are as follows. Stoddard County is in Southeastern Missouri. Stoddard County allows the sheriff to use a sheriff’s department vehicle while off duty, as his own personal car. (For the sheriff, it is one of the benefits of the job. For the County, it is a way to provide extra compensation for the sheriff, without much extra cost, and having the sheriff drive his official car even while he is off duty is a way to keep up the appearance of an increased police presence in the county.)

At around 8:00 p.m. on May 12, 2002, Ms. Leslie was driving west on Highway 60, through Stoddard County on her way to Table Rock Lake, which is in Southwestern Missouri. Sheriff Hooker, who was off duty at the time, and in civilian clothes, was driving east in the sheriff’s car, heading to a favorite bar of his in Sikeston, Missouri. Sheriff Hooker saw Ms. Leslie pass him, headed in the opposite direction. He turned his car around, turned on his flashing lights and his siren, and pulled her car over. He walked back to her car, got in her car, and raped her.

You are the lawyer for the plaintiff. The sheriff has some family money. You would be able to collect a rather sizeable judgment. You believe that you will be able to get a bigger verdict against the sheriff from a federal jury, which will be drawn from the Western District of Missouri, than from a local state-court jury, which would be drawn from Stoddard County, so you have sued the sheriff in federal court. Make your argument that these facts support a § 1983 action. (Do not worry about the amount of damages your client might recover; just make your argument that you do have an action that is viable under § 1983.)

CREIGHTON UNIVERSITY SCHOOL OF LAW

CONSTITUTIONAL LAW SPRING SEMESTER EXAMINATION

Professor Fenner Monday, May 5, 2003

PART II Page 1 of 4

INSTRUCTIONS: THIS IS A CLOSED BOOK EXAMINATION. BOOKS, STUDY

NOTES, OUTLINES, AND ANY OTHER MATERIALS ARE NOT PERMITTED IN THE

EXAMINATION ROOM. PLACE THE LAST THREE DIGITS OF YOUR EXAM

NUMBER, YOUR SECTION, YOUR PROFESSOR'S NAME, AND THE COURSE TITLE

ON EACH ANSWER BOOK. IF YOU USE MORE THAN ONE BOOK, NUMBER THEM

1 OF 2, 2 OF 2, ETC.

PART II CONSISTS OF THREE (3) QUESTIONS.

READ EACH QUESTION CAREFULLY, AND BE SURE THAT YOU ANSWER THE

QUESTION ASKED.

DO NOT GET STUCK ON ONE QUESTION AT THE EXPENSE OF OTHERS. DO NOT

GET STUCK ON ONE PART OF THE ANALYSIS OF ONE QUESTION AT THE

EXPENSE OF OTHER PARTS.

UNLESS SPECIFICALLY ASKED TO DO SO, DO NOT CONFINE YOUR ANSWER TO

ONE ISSUE OR TO ONE PART OF ONE ISSUE JUST BECAUSE YOU BELIEVE

RESOLUTION OF THAT POINT MIGHT BE DISPOSITIVE IN ACTUAL LITIGATION.

AVOID RELYING ON CONCLUSORY STATEMENTS. UNLESS OTHERWISE

STATED, I AM LOOKING FOR ANALYSIS OF THE LAW AND THE FACTS.

FOLLOW THROUGH ON YOUR ARGUMENTS, ROOTING THEM IN THE FACTS

GIVEN AND THE RELEVANT PRINCIPLES OF CONSTITUTIONAL LAW.

Professor Fenner Monday, May 5, 2003

PART II Page 2 of 4

QUESTION NO. 1: (Suggested Time, 30 Minutes)

This past semester we spent considerable time on the case of Lawrence v. Texas , which is before the United States Supreme Court this term. As I type this exam, the case has been argued but judgment has not been entered. By the time this test is given, it is possible that the Court will have entered a judgment in this case and handed down its opinion. This question has to do with the state of the law prior to any judgment in Lawrence v. Texas. This question has two parts.

In both Part A and Part B, make sure that your discussion is based in constitutional law. Religion, politics, social policy, and personal opinion should only enter the answer if they are relevant to relevant principles of constitutional law.

Be sure to confine your discussion to the time allotted for this answer.

A. First, based on the state of constitutional law preceding any judgment in Lawrence v. Texas , what is the standard of review for a state statute that criminalizes homosexual sodomy and only homosexual sodomy? What is the test if the challenge is a due process challenge? What is the test if the challenge is an equal protection challenge? In this part of the question, regarding both due process and equal protection, I am not interested in a discussion of how the Court has decided that the test you identify is the one to be applied but just what the test is and how you know that is the test. If the Supreme Court hands down its judgment in Lawrence v. Texas before this examination is taken, ignore that judgment and the opinion.

B. Second, regarding an equal protection challenge to a state statute that criminalizes homosexual sodomy and only homosexual sodomy, discuss what test you think should be applied to such a statute. It can be the one that is applied or another one. That is, were you the United States Supreme Court facing this issue for the first time, which test would you have held applied to the review of such a statute? And, of course, why? Your position can be that the current test is the correct one, with a discussion of why that it so. You position can be that some other test is the correct one, with a discussion of why that is so. Your answer must be grounded in relevant principles of constitutional law.

QUESTION NO. 2 BEGINS ON THE NEXT PAGE

Professor Fenner Monday, May 5, 2003

PART II Page 3 of 4

QUESTION NO. 2: (Suggested Time, 30 Minutes)

At the end of this question, you will be asked to decide what test applies to this First Amendment challenge and why is this particular test the one that applies? This question is different from most other questions in this regard: You are not being asked to work the test. Do not work the test. Just decide which test applies and fully explain why that is the test that applies.

One winter during the presidential term of President Ronald Reagan, a group called the Community for Creative Non-Violence (hereinafter “CCNV”) wanted to hold a demonstration in Lafayette Park, which is a public park across the street from the White House. Lafayette Park is a national park, owned and operated by the federal government.

CCNV wants to hold the rally in protest of President Reagan’s policies regarding the homeless. To dramatize the plight of the homeless, CCNV wants to pitch tents and invite the homeless to sleep in these tents overnight. This, they say, will particularly dramatize the plight of those who have no where to go on cold winter nights and turn to sleeping outdoors on heating vents, in doorways, and the like.

The National Park Service has regulations that prevent camping in all national parks except at designated campgrounds. Camping is defined so that it includes, among other things, all overnight sleeping. Lafayette Park is not a designated campground and it does not contain a designated campground.

The National Park Service has told CCNV that overnight sleeping in Lafayette Park will not be allowed. CCNV has filed suit. CCNV challenges the Park Service regulations as applied to them and their proposed demonstration. CCNV alleges a violation of its First Amendment rights, and those of its members.

What test will be applied to CCNV’s challenge to the regulations as applied here? And, more importantly, why? Assume that this lawsuit is justiciable. Do not work the test. Just decide which test applies and fully explain why that is the test that applies.

QUESTION NO. 3 BEGINS ON THE NEXT PAGE

Professor Fenner Monday, May 5, 2003

PART II Page 4 of 4

QUESTION NO. 3: (Suggested Time, 30 Minutes)

In this question, you are the federal district court judge before whom this case has been filed and you will be asked to make and fully explain your decision.

Assume the following. The City of Charlotte North Carolina entered into a contract to purchase chlorine for use in the City’s water treatment plants. The chlorine was to be used as a part of the City’s water purification process. Chlorine is commonly used in water purification and a city the size of Charlotte uses a lot of it. The contract called for Charlotte to purchase chlorine from a company I will call “Plaintiff.”

After the date that Charlotte entered into this contract, the legislature of the State of North Carolina held hearings on homeland security and one of the conclusions reached by the legislature was that the storage of chlorine gas presented a unique terrorist threat. Chlorine is poisonous. If released into the atmosphere, it is very dangerous to anyone who breathes it in. Water treatment facilities typically store their chlorine in railroad cars outside the facility or in large tanks that are part of the facility, to be used as needed. An explosion could poison the atmosphere for miles around.

As I said, water treatment for a city the size of Charlotte uses a lot of chlorine. The contract between the City and Plaintiff calls for the Plaintiff to deliver rather large and, as regards the terrorist threat, rather dangerous quantities—railroad-tanker-cars full of the gas are delivered at one time. One well-placed explosion could breach a tanker car and release the deadly chlorine gas into the atmosphere.

The legislature determined that these chlorine storage facilities were especially good terrorist targets and passed a statute requiring that water treatment facilities in North Carolina change the way they purify their water. There is a chemical that can be used in place of chlorine. It is a bit more expensive than chlorine and it is safe. It is not toxic. The legislature has given all water treatment facilities in the State 18 months to switch over.

Charlotte immediately advised Plaintiff that it would continue to purchase chlorine from the Plaintiff for another 18 months. After that, it would not purchase any more chlorine from Plaintiff. The way the timing works out, Charlotte has told Plaintiff that, because of this state law it will not honor the final two-and-one-half years of its five-year contract with Plaintiff.

Plaintiff has filed suit claiming that Charlotte’s actions and the North Carolina state statute violate the Contract Clause. Plaintiff seeks damages. You are the federal district court judge before whom this lawsuit is pending. Enter judgment in this case and fully explain the reasoning behind your judgment.