Constitutional Law, 520L

Section 2

Professor Carl H. Esbeck  Fall Semester 2003


Directions to Part II - Essay

(1 hour and 15 minutes)

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.  Do not use the pages of the bluebook for scratch paper.  Do not insert your scratch paper in your bluebook.

Arrange your answers in the bluebook in sequential order; that is, put Question 1 first, then 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.

Place your examination number in the upper right-hand corner of this examination. When finished, return both your bluebook and this examination.

PART II -- Essay (1 hour and 15 minutes)

Question One (10 minutes): One of the claims in United States v. American Library Association, Inc., was that the right of free speech of public libraries (who are members of the Association) is being violated by the Children's Internet Protection Act. Does this state a claim for which relief can be granted to the American Library Association, Inc.? Explain.


Question Two (25 minutes): Amanda Blair is a senior at the public high school in Big Piney, Wyoming. Although she is heterosexual, Amanda desired to bring a female as her date to the Fall Homecoming dance. She explains that her aim was to show solidarity with gay and lesbian students among her classmates. Only students and their dates (if they have one) may attend the dance, and school officials told Amanda that for reasons of morality students are prohibited from inviting same-sex dates. Amanda has sued alleging a violation of her constitutional rights. What is Amanda's chance of success? Explain.


Question Three (10 minutes): A state university has affirmative action for racial minorities in its law school admission program. The justification of the program is to "make up" in the present for past racial discrimination at the school. Is this constitutional? Explain.


Question Four (30 minutes): Of the 300,000 women that are sexually assaulted each year in the United States, about 25,000 become pregnant as a result. Acting on that information the states of New York, Massachusetts, California, Washington, Oregon, and New Mexico have recently enacted laws that require all hospitals, public and private, to offer emergency contraception to rape victims. This involves giving the woman two pills taken 12 hours apart. Although there were requests to exempt religious hospitals, the requests were refused by the legislature and the laws do not exempt religious hospitals.

In response to this trend in state law, Congress passes legislation that preempts all such laws unless the state exempts religious hospitals. Additionally, the federal legislation requires that before hospitals administer emergency contraception to a victim of a sexual assault that the woman be fully informed. Specifically, she must be informed that fertilization may have already taken place and, if so, then taking the drug will not act as a contraceptive but as an abortifacient.

Is the congressional legislation constitutional? Explain.