Examination Number ________________




Civil Rights, 5415L


Professor Carl H. Esbeck Spring Semester 2010




Directions to Essay Examination

(three hours)


Place your examination number in the upper right-hand corner of this examination.


When finished, return these essay examination questions and submit your essay answers.


Answer only the question asked. Do not raise or answer questions not asked.


Arrange your answers in sequential order. That is, put your answer to Question 1 first, then your answer to Question 2, and etc. If you want to skip over a question and come back to it later, leave a page or two blank and begin the next question.


You may use your laptop to complete this examination.


If you do not use your laptop, write your answer in the bluebook provided.  Use a pen with blue or black ink. Write on only one side of each page.  Do not write in the left-hand margin. Do not tear pages out of the bluebook. 


You may bring with you into the examination room your casebook, class handouts, your statutory supplement, and your classroom notes (not borrowed notes). You may also bring a course outline provided it is entirely your own work product. It is an Honor Code violation to have any other materials with you during the examination.



* * * The Questions begin on the Next Page * * *






Civil Rights, 5415L

(three hours)


Question 1: (30 minutes)


Assume public schools in the Virgin Islands (a U.S. territory) start the practice of teacher-led prayer at the beginning of the school day in all elementary school classrooms. The school board directed that the practice begin on the first day of classes starting with the 2009-2010 academic year.


Two fourth-grade children attending Roosevelt Elementary School, along with their parents, bring a Bivens-type claim to enjoin the teacher-led prayers.  Plaintiffs also seek nominal damages of one dollar and their attorney fees.  Sued in their official and personal capacities are the fourth-grade classroom teacher, the elementary school principal, and the school district superintendent (there is only one school district for the islands).  As the Assistant United States Attorney assigned to defend the case, what defenses could you reasonably raise?  Explain.



Question 2: (10 minutes)


In a Fourth Amendment search & seizure case filed against a municipal police officer sued in her personal capacity, assume the officer/defendant believed the search was unconstitutional when she did it. The trial court, however, concludes that the law was unclear at the time when the search was conducted. Does the defense of qualified immunity result in a dismissal of the claim against the defendant? Explain.



Question 3: (30 minutes)


The director of the Boone County Library District has before him an equal-access issue concerning use by a local church on Sunday morning of the library's community room (a free meeting room holding up to sixty people). The director seeks legal advice from a local law firm that handles the library district's routine legal matters. There is a written access policy concerning use of the community room by local organizations that was unanimously adopted by the library governing board two years ago. The advice of the law firm is that the access policy, as well as the First Amendment, permits exclusion of the church if the use is for a worship service as opposed to a community social or civic event that might have religious content. Thus the church could have access to the room for a panel to debate abortion or sex education from a religious perspective, and to even hold a Bible study seminar. But worship services are deemed of a different character, in the lawyer's view, and thus distinguished as a proper content-based exclusion under the written access policy. Acting on this legal advice, the library director denies the church's access request.


The church sues the seven members of the library governing board that had adopted the access policy. The governing board members are sued in both their personal and official capacities. The church seeks an order requiring access to the community room on Sunday morning for its worship services, as well as damages measured by the expense in the interim of having to rent comparable space at a local convention hotel. The governing board members timely assert both absolute and qualified immunity.


Research shows that the U.S. Supreme Court in Widmar v. Vincent (1981), first ruled government officials should not distinguish between ordinary religious speech and religious speech that is characterized as "worship." The Widmar Court reasoned that to attempt any such distinction entangles government in the classification of religious subject matter (over which differing religion have contrasting views) and thus violates church-state separation.


How should the court rule on the library board members' immunity defenses? Explain.



Question 4 (20 minutes): As a result of a fight started by another inmate, Tom Dooley lost his good time credits while an inmate in the New Mexico Penitentiary. This means he is no longer eligible for early release and will have to serve his entire eight-year sentence. Dooley believes his procedural due process rights were violated. His grievance was timely filed with the warden, but a month later he received a summary denial. He was offered no hearing or opportunity to present evidence that he did not start the fight and was only protecting himself when attacked without provocation.


Dooley now files a claim against the warden in federal court under 42 U.S.C. §1983 seeking injunctive relief. Should the case be dismissed because it is a habeas corpus matter? Dismissed for some other reason? Explain.



Question 5 (25 minutes): Assume a large church operates a child-care center as one of its outreach ministries. The center has a total of 45 children. Assume that the center comprises 7 % of the church budget and takes up an eighth of all staff activity. Further assume that the outreach ministry receives federal aid in the form of three child-care certificates issued to low-income parents under the Child Care Block Grant Act of 1990. A youth pastor employed by the church, Sally Ride, has just learned she is HIV positive. When she tells the senior pastor, Sally is dismissed. Sally files a lawsuit against the church in federal court alleging employment discrimination contrary to the Rehabilitation Act of 1973.


In each subpart below the question is whether the entire operations of the church are covered by the Rehabilitation Act. Be certain to give the citation to the proper statutory section on which your answer is based.


(A) The church operates the child-care center out of the church basement.


(B) The child-care center is located in a separate building but on the same parcel of real estate as the church proper.


(C) The child-care center is located across a city street from the church proper.


(D) Same facts as in B except that the church separately incorporates its child-care center.


(E) Same facts as in A except that the church separately incorporates its child-care center.



Question 6 (15 minutes): A female inmate in the Macon, Missouri, city jail successfully brings a 42 U.S.C. §1983 claim against the municipality because of the appalling conditions of confinement. It turns out that male inmates were able to spy on female inmates while showering. The claim is filed in state circuit court and sought $100,000 in damages. She wins a jury award of one dollar nominal damages plus $25,000 in punitive damages. No injunctive relief was sought because the inmate was released from jail after only three days of confinement. There is a Missouri statute that says all punitive damage awards in excess of twice the compensatory award shall go into a trust fund for the victims of crimes committed in the state. The fund is administered by the office of the state attorney general. Punitive damages are to punish the civil defendant, not compensate the injured plaintiff. Accordingly, the legislature set up the trust fund because it viewed any punitive damages in excess of twice compensatory damages a windfall for plaintiffs. Should the circuit court award the female inmate a total judgment of $3.00, and have defendant pay the balance of $24,998 judgment to the victims' trust fund? Explain.



Question 7 (50 minutes): News reports leading up to and following passage of the congressional Health Care Reform Act reported that ten Democrats in the House (all of whom voted for the bill) as well as some Republicans in the House (all of whom voted against the bill) were the object of vandalism, name calling, and recorded threats.


Four congressional offices of Democrats had objects thrown through a window. A brick flung through a window in Rochester, New York, had an attached note reading, "Extremism in defense of liberty is no vice." A congresswoman's office in Niagara Falls, New York, also was smashed with a brick. House Majority Leader Steny Hoyer complained that Capitol demonstrators had yelled that Democratic lawmakers should be put on firing lines and posters appeared with the faces of Democratic lawmakers in the cross hairs of a gun scope. Rep. Bart Stupak, D-Mich., released voicemail messages left on his office phone. One caller said, "I hope you die." Another recording said, "There are millions of people across the country who wishes you ill. And all of those thoughts projected on you will materialize into something that's not very good for you." Lyndsay Stauble, executive director of the Sedgwick County Democratic Party in Wichita, Kansas, said a brick was hurled through the party's storefront plate glass window late one night landing in her office and gouging her wooden desk. In Tucson, Arizona, someone kicked in or shot out a glass door and side window at the congressional office of Democratic Rep. Gabrielle Giffords in the early morning hours following the vote. The damage was discovered when staff arrived at work. They were rather shaken by the incident.


While the bill was still being debated in the House, members of the Congressional Black Caucus and Rep. Barney Frank walked through a crowd outside the Capitol that had assembled to demonstrate against the bill. This was a Tea Party Movement crowd chanting, "Kill the Bill." One black congressman reported he was spit upon. Several black members reported hearing racial epithets, and Congressman Frank, who is gay, reported anti-homosexual slurs were directed at him.


While Democratic leaders accused Republican officeholders of "fanning the flames" of extremism, Republicans both condemned the above-reported actions (if true) and accused Democrats of exploiting the incidents for political purposes. Rep. Eric Cantor, R-Va., the House Republican whip, reported that he too had been a victim of violence. He said his district office was shot at in the early morning hours. There was also posted on YouTube a video in which a man threatened to shoot Cantor and his family for opposing the bill. The video was filled with anti-Semitic invective. Rep. Cantor is the only Jewish member of the House who is a Republican. Rep. Jean Schmidt, R-OH, also released a recording of a threatening and angry voicemail in which Republicans were repeatedly accused of being racists for opposing the healthcare bill.


Assuming-for purposes of this question-that the accuracy of all these reports are confirmed by the FBI and that the perpetrators are identified.


(A) Are any of the acts of vandalism, name calling, or recorded threats actionable under 42 U.S.C. §§1981 or 1982? Explain.


(B) Are any of these same acts actionable under 42 U.S.C. §§1985? Explain.