Legislation (524L)
Professor Martha Dragich
Winter, 1999

General Instructions

This is a closed book examination. You may not refer to any materials whatsoever, including textbook, notes, or outlines. This examination is governed by provisions of the law school's Honor Code.

The examination consists of two questions and 12 pages. Please check immediately to make certain that your copy includes all the pages. You must return the examination along with your bluebooks at the end of the examination.

Do not remove any pages from your bluebooks. If you have written matter that, upon reflection, you do not wish me to read, please draw an "X" across it and write "OMIT" in the margin. I will neither read nor consider any material so marked.

You will have three (3) hours in which to complete the examination.

Each question indicates the number of points it is worth in the grading. These figures assume that the examination as a whole is worth 75 points towards your final grade for the course.

Each question asks you to "develop an argument" on behalf of a particular party. Obviously, time will not permit full development of the argument as it would appear in a finished appellate brief. You should do more, however, than merely outline the argument. In addition to presenting your client's position, your argument should refute any major counterarguments likely to be raised by the other side. You need not raise every conceivable argument. Rather, you should raise any and all that, in your judgment, are necessary to a sound construction of the statute.

In the course of answering a question, you may find it necessary to rely on facts or assumptions not included in the questions. I will accept as true any fact or assumption you state, so long as it is not flatly contradicted by the materials I set forth in the question.

In grading these two questions, primary emphasis will be placed on the content of the answer, including identification of issues and cogency of analysis. Less weight will be placed on polished writing, but that does not mean that clarity of expression is irrelevant.


Question 1 (45 points)

A case currently pending before the United States Supreme Court involves the claim of a female elementary school student (brought by her mother) against the school board and school officials for injunctive relief and damages resulting from sexual harassment by a male student of the school.

The facts, as stated by the Court of Appeals, are as follows:

Appellant, A. D., brought this suit against the Board of Education of Monroe County (the "Board") and two school officials on behalf of her daughter. The complaint alleged that the defendants violated section 901 of the Education Amendments of 1972, Pub.L. No. 92-318, 86 Stat. 235, 373 (1972) (codified as amended at 20 U.S.C. § 1681 (1994)) ("Title IX") by failing to prevent a student at Hubbard Elementary School ("Hubbard") from sexually harassing L. D. while she was a student there. Appellant sought injunctive relief and damages.

L. D. was enrolled as a fifth-grade student at Hubbard during the 1992-1993 school year. The complaint alleges that the Board administered federally funded educational programs at Hubbard and supervised the school's employees, including the principal and teachers.

According to the complaint, a fifth-grade student named "G.F." was in several of L. D.'s classes and initially was assigned to the seat next to L. D. in one classroom. On December 17, 1992, while in this classroom, G.F. allegedly tried to touch L. D.'s breasts. G.F. also allegedly directed vulgarities at L. D., such as "I want to get in bed with you." L. D. complained to the classroom teacher. After school that day, L. D. also told her mother, the appellant, about G.F.'s behavior. The complaint states that G.F. engaged in similar (although unspecified) conduct on or about January 4, 1993, and again on January 20, 1993. L. D. allegedly reported both incidents to her teacher and the principal. After one of these first three incidents, appellant called the teacher, who told appellant in the course of their conversation that the principal knew about one of the incidents.

G.F.'s misconduct continued. On February 3, 1993, G.F. allegedly placed a door-stop in his pants and behaved in a sexually suggestive manner toward L. D. during their physical education class. L. D. reported this incident to the physical education teacher. On February 10, 1993, G.F. engaged in unspecified conduct similar to that of the December 17 incident in the classroom of another of L. D.'s teachers. L. D. notified this teacher of G.F.'s behavior and later told appellant, who then called the teacher to discuss the incident. On March 1, 1993, G.F. directed more unspecified, offensive conduct toward L. D. during physical education class. L. D. reported G.F. to two teachers. An unidentified teacher allegedly told L. D. that the principal was not ready to listen to her complaint about G.F.

At some point around March 17, 1993, one of L.D.'s teachers allowed L. D. to change assigned seats away from G.F. G.F., however, persisted in his unwelcome attentions. On April 12, 1993, he rubbed his body against L. D. in a manner she considered sexually suggestive; this incident occurred in the hallway on the way to lunch. L. D. again complained to one of her teachers.

Lastly, on May 19, 1993, L. D. complained to appellant after school about more unspecified behavior by G.F. Appellant and L. D. then paid a visit to the principal to discuss G.F.'s conduct. At this meeting, the principal asked L. D. why no other students had complained about G.F. During this meeting, the principal also told appellant, "I guess I'll have to threaten [G.F.] a little bit harder." On the same day, May 19, G.F. was charged with sexual battery, a charge which he apparently did not deny. The complaint does not tell us who summoned the police.

Appellant claims that L. D. suffered mental anguish because of G.F.'s behavior. As indicia of this emotional trauma, the complaint states that L. D.'s grades dropped during the 1992-1993 school year and that L. D. wrote a suicide note in April 1993.

The appellate court summarized the allegations as follows:
In all, the complaint describes eight separate instances of sexual harassment by G.F. These eight instances of alleged harassment occurred, on average, once every twenty-two days over a six-month period. L. D. reported each instance of alleged harassment to at least one teacher. L. D. reported the final instance of harassment, the May 19 incident, to appellant and the principal. The complaint does not allege that any faculty member knew of more than four instances of harassment, and the complaint indicates that the principal learned of only one instance of harassment before his meeting with appellant and L. D. on May 19.

The complaint does not state what action each of the teachers took upon being informed by L. D. of G.F.'s demeaning conduct. We assume for appellant's benefit that the teachers took no action other than apparent notification of the principal after one of the first three instances of alleged harassment, and the decision of one teacher around March 17, 1993, to move L. D.'s assigned seat away from that of G.F. We will also accept as true that the principal took no measures against G.F. other than threatening him with disciplinary action at some point before his May 19 meeting with appellant and her daughter. For example, we assume for appellant's benefit that someone other than the school staff instigated the prosecution of G.F.

Based on the above allegations, appellant contends that "[t]he deliberate indifference by Defendants to the unwelcomed [sic] sexual advances of a student upon L. D. created an intimidating, hostile, offensive and abuse [sic] school environment in violation of Title IX."

The district court dismissed appellant's complaint in its entirety for failure to state a claim upon which relief can be granted. The Court of Appeals affirmed on the ground that under Title IX, Congress gave no clear notice to schools and teachers that they, rather than society as a whole, would accept responsibility for remedying student-student sexual harassment when they chose to accept federal financial assistance under Title IX.

The Court of Appeals stated that its task was to "consider whether Title IX allows a claim against a school board based on a school official's failure to remedy a known hostile environment caused by the sexual harassment of one student by another."

The appellate court recited the relevant statutory provision:

Title IX provides that "[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." 20 U.S.C. § 1681 (1994).
According to the appellate court,
[t]he Supreme Court has not squarely addressed the issue of student-student sexual harassment. In general, the Court has allowed private plaintiffs to proceed under Title IX only in cases that allege intentional gender discrimination by the administrators of educational institutions. According to the Court, plaintiffs can state a claim under Title IX by alleging that a federally funded educational institution, acting through its employees, intentionally subjected them to discrimination in its educational programs or activities. See Cannon v. University of Chicago (1979). For example, where a teacher engaged a student in sexually oriented conversations, solicited dates from her, forcibly kissed her on the mouth, and thrice removed her from another class in order to engage in coercive sexual intercourse with her in a private office at the school, the Court found that the school board could be held liable for his actions. See Franklin v. Gwinnett County Pub. Schs. (1992). Neither the Supreme Court nor this court has ever found, however, that a school board can be held liable for failing to prevent non-employees from discriminating against students on the basis of sex.
The Court of Appeals also recounted the history of enactment of various civil rights provisions:
By 1970, section 703 of the Civil Rights Act of 1964 already prohibited gender discrimination in employment. [FN1] Title VII, however, did not apply to educational institutions. Similarly, section 601 of the Civil Rights Act prohibited racial discrimination by all recipients of federal funding.[FN2] Title VI did not ban gender discrimination by recipients of federal funding.

FN1. Title VII states, "It shall be an unlawful employment practice for an employer ... to discriminate against any individual with respect to ... compensation, terms, conditions, or privileges of employment, because of such individual's ... sex." 42 U.S.C. § 2000e-2(a)(1) (1994).

FN2. Title VI provides that "[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 42 U.S.C. § 2000d (1994).

To fill this gap in antidiscrimination legislation, Congress eventually enacted, as part of the 1972 Education Amendments legislation, the antidiscrimination measure now known as Title IX. An early version of the measure would have applied to schools the non-discrimination requirements of Title VII and added "sex" to the types of discrimination banned by Title VI. In other words, this measure was designed to bridge the gap between Title VII and Title VI. This version, however, never reached the floor.

Because of irreconcilable differences in their respective education amendments bills, both Houses eventually referred the bills to a conference committee. The conference committee reported out a joint bill containing the antidiscrimination measure now known as Title IX and codified as 20 U.S.C. §1681. The committee, however, did not explain its reasons for including Title IX. The conference bill passed both Houses and was signed into law on June 23, 1972. Throughout this long legislative history, the drafters of Title IX never discussed student-student sexual harassment or the related issue of school discipline.

The Court of Appeals also considered the relevance to Title IX of the legislative history of Title VI:
As Justice White quoted from the legislative history of Title VI, "It is not a regulatory measure, but an exercise of the unquestioned power of the Federal Government to fix the terms on which Federal funds shall be disbursed." Justice White summed up the legislative philosophy behind Title VI: "Stop the discrimination, get the money; continue the discrimination, do not get the money." This interpretation matches the plain language of Title VI, which conditions the disbursement of federal funds on the recipient's agreement not to discriminate on the basis of race.

The language of Title IX is virtually identical to the language of Title VI. The only differences are the substitution of the words "on the basis of sex" for the words "on the ground of race, color, or national origin" and the insertion of the word "educational" in front of the words "program or activity." Not surprisingly, the Supreme Court has found that "Title IX was patterned after Title VI."

The Court of Appeals found that Title IX, like Title VI, was enacted under Congress' power to spend for the general welfare of the United States:

Title IX, like Title VI, was enacted under the Spending Clause of Article I. See U.S. Const. art. I, § 8, cl. 1. [FN3] The Supreme Court's study of the legislative history of Title IX has led it to conclude that the drafters of Title IX intended that courts interpret it in the same way they have interpreted Title VI. When Congress conditions the receipt of federal funding upon a recipient's compliance with federal statutory directives, Congress is acting pursuant to its spending power. The legislative history of Title IX indicates that Congress intended to impose upon recipients of federal educational assistance a requirement of non-discrimination on the basis of sex. The Spending Clause authorized Congress to impose this condition.

FN3. Section 8 of Article I provides, in part, that "[t]he Congress shall have [the] Power To ... provide for the ... general Welfare of the United States." U.S. Const. art. I, § 8, cl. 1.

When Congress enacts legislation pursuant to the Spending Clause, it in effect offers to form a contract with potential recipients of federal funding. Recipients who accept federal monies also accept the conditions Congress has attached to its offer. A prospective recipient is free to decline a grant of federal funding. Similarly, a current recipient may withdraw from a federal program and decline further funding if it so chooses. The freedom of recipients to decline prospectively or to terminate retrospectively a grant of federal funding ensures that they will remain responsive to the preferences of their local constituents.

To ensure the voluntariness of participation in federal programs, the Supreme Court has required Congress to give potential recipients unambiguous notice of the conditions they are assuming when they accept federal funding. A spending power provision must read like a prospectus and give funding recipients a clear signal of what they are buying. The Court has explained, "By insisting that Congress speak with a clear voice, we enable the States to exercise their choice knowingly, cognizant of the consequences of their participation." With regard to the case at hand, "Congress must be unambiguous in expressing to school districts the conditions it has attached to the receipt of federal funds."
[Because Title IX was enacted pursuant to the spending power, the Court of Appeals concluded that it could reach non-state actors as well as state actors.]

Additionally, the appellate court noted the existence of administrative regulations:

The Office of Civil Rights of the United States Department of Justice ("OCR") issued interim guidelines concerning schoolhouse sexual harassment on August 16, 1996. The OCR issued final policy guidance on student sexual harassment on March 13, 1997. See Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties, 62 Fed.Reg. 12,034 (1997).

According to the March 13 guidance, schools are liable for failing to eliminate "sexually harassing conduct (which can include unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature) ... by another student ... that is sufficiently severe, persistent, or pervasive to limit a student's ability to participate in or benefit from an education program or activity, or to create a hostile or abusive educational environment."

The March 13 guidance lists several factors which should be taken into account when a student is sent to the office for sexually harassing another student. Among other factors and subfactors, the school official should consider the "welcomeness" of the conduct, the age of the harasser, the age of the victim, the relationship between the parties, the degree to which the conduct was sexual in nature, the duration of the conduct, the frequency of the conduct involved, the degree to which the conduct affected the victim's education, the pervasiveness of the conduct at the school, the location of the incident, the occurrence of any similar incidents at the school, the occurrence of any incidents of gender-based but non-sexual harassment, the size of the school, and the number of individuals involved in the incident.

The school official should keep in mind that "in some circumstances, nonsexual conduct may take on sexual connotations and may rise to the level of sexual harassment." He should also remember that "a hostile environment may exist even if there is no tangible injury to the student," and even if the complaining student was not the target of the harassment. In addition, the official must recall that a single act of student-student harassment can create a hostile environment. Finally, the school official must keep in mind that, if he does not kick the alleged harasser out of school, and the harasser misbehaves again, the official could be personally liable if a jury concludes, after the fact, that he could have done more to prevent the harasser from harming his classmates.

According to the OCR, the official may be liable even if he did not know about the harassment: the official may cause the school to violate Title IX if he failed to exercise "due care" in discovering the misconduct.

You represent the appellant. Develop an argument that (1) the complaint states a claim upon which relief can be granted, and (2) the relief available includes both injunctive relief and damages. You may assume that there is no additional, specifically relevant legislative history nor any other closely related statutes beyond those set out above. You are responsible only for issues relating to the interpretation or construction of the statute, not for the substantive law of sexual harassment, constitutional law ramifications, or other matters.

Question 2
(30 points)

The Department of Corrections of the State of Grace issued a proposal booklet concerning the location of a 1500 bed, high custody, male correctional facility. Part of the State's proposal required any interested municipality to provide the land for the correctional facility at no cost to the State.

The City of Opportunity is a fourth class city within the State of Grace. After considering the State's site selection criteria, the Board of Aldermen then held open meetings for public discussion on whether the City of Opportunity should submit a proposal to the State. On March 13, 1997, the Board of Aldermen passed the following resolution:

     WHEREAS, the State of Grace, through the Department of Corrections, has issued a request for proposals for location of a 1500 bed, high custody, male correctional facility; and

     WHEREAS, the City of Opportunity is desirous of locating this facility in the Opportunity area, due primarily to its economic impact on the community; and

     WHEREAS, the impact of such a facility on the economy of the Opportunity area would be significant; and

     WHEREAS, the request for proposals issued by the Department of Corrections requires a resolution indicating support from the local governing body for community incentives contained in the proposal for the location of such a facility,

     NOW, THEREFORE, BE IT RESOLVED, by the Board of Aldermen of the City of Opportunity, State of Grace, that the following community incentives for the location of a high custody, male correctional facility be included in the City of Opportunity's proposal and that these incentives enjoy the full support of the Board of Aldermen:
     (1) Land for the site to be provided to the State at no cost. Estimated value of the 201 acres included in the proposed site is $400,000.00.
     (2) Extension of water services to the proposed site at no cost to the State. Estimated value of the extension of such facilities is $40,000.00.
     (3) Extension of sanitary sewer service to the proposed site at no cost to the State. Estimated value of the extension of such facilities is $45,000.00.
     (4) New industrial grade street from State Highway 32 to the proposed site at no cost to the State. Estimated value of the new road is $77,000.00
A motion was also approved authorizing Mayor Goode to sign a Real Estate Option Contract as to the 201-acre tract.

In the fall of 1997, the State selected Opportunity for the site of the prison from the eighteen proposals presented to the State. Subsequently, the City acquired ownership of the 201 acres and deeded the land to the State. The parties agree that the 201 acres lay "mostly" outside of Opportunity city limits. The record shows that approximately 15 acres is located within the city limits. Apparently, all the land lays within a single tract.

In order to finance the land purchase and certain improvements, the City issued $595,000 worth of "Certificates of Participation."

Joe D. Taxpayer filed a declaratory judgment action challenging the city's authority to purchase land outside its city limits for the purpose of donating the property to the state for construction of a state penitentiary.

You are an associate in the firm of Bright and Smartt, which has been retained by the city. The senior partner handling the case has provided you with the following statutory provisions and other information.

R.S. Grace Chap. 79 is entitled "Fourth Class Cities." §79.110 (Mayor and board--duties.) describes the duties of the mayor and board of aldermen as follows:

"The mayor and board of aldermen ... shall have the care, management and control of the city and its finances, and shall have power to enact and ordain any and all ordinances not repugnant to the constitution and laws of this state, and such as they shall deem expedient for the good government of the city, the preservation of peace and good order, the benefit of trade and commerce and the health of the inhabitants thereof, and such other ordinances, rules and regulations as may be deemed necessary to carry such powers into effect, and to alter, modify or repeal the same."
§79.010 (Fourth Class Cities, incorporation of.) states, in pertinent part:
"Any city of the fourth class in this state may become a body corporate under the provisions of this chapter, ... and ... may receive and hold property, both real and personal, within such city, and may purchase, receive and hold real estate within or without such city for the burial of the dead; and may purchase, hold, lease, sell or otherwise dispose of any property, real or personal, it now owns or may hereafter acquire; may receive bequests, gifts and donations of all kinds of property, ...."
§79.010 was adopted in 1895 and has not been amended since that time. Several other sections relating to the purchase of land have been added to Chapter 79, including the following:

§79.380 (Diseases, control of--condemnation for public facilities--police jurisdiction, city-owned property) (first enacted in 1929) authorizes the board of aldermen of a fourth class city to

"purchase or condemn and hold for the city, within or without the city limits, or within ten miles therefrom, all necessary lands for hospital purposes, waterworks, sewer carriage and outfall, and erect, establish, and regulate hospitals, workhouses, poorhouses, airports and provide for the government and support of the same. ... The police jurisdiction of the city shall extend over such land and property to the same extent as over other city property, as provided in this chapter."
§79.390 (Powers--water supply, marketplaces, city hall, prison, parks.) (also first enacted in 1929) authorizes fourth class cities to
"purchase grounds and erect and establish market houses, and marketplaces, and regulate and govern the same, ... on such terms and conditions as the board of aldermen may prescribe. They may also provide for the erection, purchase, or renting of the city hall, workhouse, houses of corrections, prisons, ... and any and all other necessary buildings for the city, and may sell, lease, abolish or otherwise dispose of the same, and may enclose, improve, regulate, purchase or sell all public parks or other public grounds belonging to the city, and may purchase and hold grounds for public parks within the city, or within three miles thereof."
§71.680 (Garbage and refuse collection and disposal--contracts for--disposal facilities, acquisition, bond issue and contracts.) (adopted in 1939) permits cities of the second, third, or fourth class to
"acquire by purchase, construction, lease, gift or otherwise, within or without the corporate limits of such cities, incinerators for the destruction of garbage...."
In addition, §88.667 (Condemnation of private property (fourth class cities)) (enacted in 1939) authorizes any city of the fourth class to take
"private property for public use, for the purpose of establishing, opening, widening extending or altering any street, avenue, alley, wharf, creek, river, watercourse, marketplace, public park, or public square, and for establishing markethouses and for any other necessary public purposes."
There is no recorded legislative history of any of these provisions. Nor is there a case construing them.

Two sections of Article X of the State Constitution may be relevant to construction of the statute. Art. X, §1 provides:

"The taxing power may be exercised ... by counties and other political subdivisions under power granted to them by the general assembly for county, municipal and other corporate purposes."
Art. X, §3 provides:
"Taxes may be collected for public purposes only. ..."
Develop an argument that the city's purchase of land to be donated to the state for construction of a prison is authorized under the statute. You may assume that the law of the State of Grace is the same as that of its neighboring state, Missouri.