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, “low-
income” 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 race-
neutral 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 racially-
charged 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,

Constitutional Law III-Autumn 1996 - Final Examination - Page 1 of 5

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.

Constitutional Law III-Autumn 1996 - Final Examination - Page 2 of 5

 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 African-
American 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 African-
American, and that only 1 percent of all city contracts actually awarded go to African-
American 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

Constitutional Law III - Autumn 1996 - Final Examination - Page 3 of 5

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

Constitutional Law III - Autumn 1996 - Final Examination - Page 4 of 5

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 African-
Americans and whites is primarily the result of the inferior schooling that African-
American 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.

Constitutional Law III - Autumn 1996 - Final Examination - Page 5 of 5

To: Students in Con. Law III
From: Prof. Obama
Re: 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

1
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

2
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

3
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)

4
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.

5
 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

6
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 “all-
black, 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 “African-
centered” 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

10
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 “self-
segregation” 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

11
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 race-
based 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

13
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 state-
sponsored 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

14
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 race-
based 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.

15
 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 “African-
centered” 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

16
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).

17
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.

Constitutional Law III-Fall 1997-Final Examination-Page 1 of 5 1

 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

Constitutional Law III-Fall 1997-Final Examination-Page 2 of 5 2

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

Constitutional Law III-Fall 1997-Final Examination-Page 3 of 5 3

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.

Constitutional Law III-Fall 1997-Final Examination-Page 4 of 5

 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 non-
blacks 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

Constitutional Law III-Fall 1997-Final Examination-Page 5 of 5

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 white-
controlled 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

Constitutional Law III - Fall 1998 - Final Examination - Page 1 of 8

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

Constitutional Law III - Fall 1998 - Final Examination - Page 2 of 8

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.

Constitutional Law III - Fall 1998 - Final Examination - Page 3 of 8

 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.

Constitutional Law III - Fail 1998 - Final Examination - Page 4 of 8

 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

Constitutional Law III - Fall 1998 - Final Examination - Page 5 of 8

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

Constitutional Law III - Fall 1998 - Final Examination - Page 6 of 8

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?

Constitutional Law III - Fall 1998 - Final Examination - Page 7 of 8

 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

Constitutional Law III - Fall 1998 - Final Examination - Page 8 of 8

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 month-

long 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

Constitutional Law III - Fall 1999 - Final Examination - Page 1 of 5

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

Constitutional Law III - Fall 1999 - Final Examination - Page 2 of 5

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”

Constitutional Law III - Fall 1999 - Final Examination - Page 3 of 5

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 Smoke-
Free 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

Constitutional Law III - Fall 1999 - Final Examination - Page 4 of 5

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

Constitutional Law III - Fall 1999 - Final Examination - Page 5 of 5

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 one-
inch 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, pre-
exposure, 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.
2) The CDC’s second priority will be to vaccinate all adult women under the age
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 on-
the-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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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 sex-
selection 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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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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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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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 “but-
for” 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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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.
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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

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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.
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