Examination number _________________





Constitutional Law, 5220L

Section 1


Professor Carl H. Esbeck Fall Semester 2010



Directions to Part I B Essay

(1 hour and 20 minutes)


Place your examination number in the upper right-hand corner of this examination. When finished, return either your computer printout or bluebook and these examination questions.


Arrange your answers in sequential order. That is, put Question 1 first, then Question 2, then Question 3, and etc. If you want to skip over a Question and come back to it later, leave a blank space or blank page and begin the next Question.


You are encouraged to use your laptop to complete this Part I.


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 take with you into the examination room your casebook (including photocopied handouts), the 2010 Supplement to the casebook, your own classroom notes (not borrowed notes), an outline which is entirely your own work product, and a copy of the U.S. Constitution marked-up by you. It is an Honor Code violation to have in your possession any other materials during the examination.


* * * Part I Begins on the Next Page * * *




PART I -- Essay (1 hour and 20 minutes)


Question 1 (15 minutes): Consider the majority opinion by Justice Alito in McDonald v. City of Chicago (2010), and the dissenting opinion by Justice Breyer. Briefly identify and then contrast the J. Alito and J. Breyer approaches to the task of incorporation. Be critical in your analysis, which is to say give praise when praise is due and criticism when criticism is due.


Question 2 (5 minutes): Did the Bill of Rights vest any new powers in the federal government? Explain.


Question 3 (10 minutes): With respect to Equal Protection Clause analysis, the Supreme Court repeatedly writes that the clause protects persons and not groups of persons. How does that reconcile with standard Equal Protection Clause analysis where you have Group A with some burden not borne by Group B or you have Group A that does not enjoy some benefit available to Group B? Explain.

Question 4 (15 minutes): A public junior high school has a policy of providing free access to an over-the-counter drug called "Plan B". It is to be taken within 36 hours of sexual intercourse to prevent pregnancy. The policy is administered through the school nurse. The parents of the student are never informed. This is because otherwise a female student desirous of the drug will not go to the school nurse for assistance; experience has shown that most students do not want their parents to know they are sexually active. In one particular instance in November 2010 a 14-year-old student, Karen, obtains a package of "Plan B" from the nurse and later that evening has a stroke caused by the drug. The stroke leaves Karen with permanent mental and physical disabilities. The parents of Karen sue the school alleging that the policy violates their constitutional right to direct the upbringing of their child. The school denies the claim, and asserts that Karen had a constitutional right to access the contraceptive. How should the parents' constitutional claim and the school's constitutional defense be resolved? Explain.


Question 5 (10 minutes): Can a case like Garcetti v. Ceballos (2006) be reconciled with the doctrines of state action and unconstitutional conditions? Explain.


Question 6 (10 minutes): Recall the case of Adickes v. Kress & Co. (1970), involving a lunch counter sit-in protest over southern segregation. The Supreme Court held that the arrest by the police of the protesters for trespassing did not involve state action. Can this be reconciled with the doctrines of symbolic speech and the police officer's arrest supporting racial segregation addressed by the Equal Protection Clause? Explain.


Question 7 (15 minutes): Assume Missouri State University ["University"] has a policy on the recognition of student organizations. Recognition is necessary to schedule classrooms for meetings by a student organization and to have a webpage on the University website. Organizations may have leadership criteria, such as past regular attendance at meetings and demonstrated interest in the purpose of the organization. However, student organizations may not discriminate in the selection of leaders on the basis of race, national origin, gender, or religion. The Muslim Student Organization ["MSO"] is open to attendance by any university student. However, to be selected as a leader you have to be a follower of Islam. University denies recognition to MSO because it discriminates on the basis of religion. MSO sues University alleging denial of freedom of speech and association. The Complaint alleges the nondiscrimination policy is viewpoint and content discriminatory, pointing out that, for example, the Environmental Club can choose its leaders on the basis that the leaders believe in environmentalism. University defends on the basis that the regulation is uniformly applicable to all student organizations, that it regulates action not expression, that there is no substantial burden on MSO, and that the University has a substantial interest in eradicating certain bases of discrimination. How should the court rule? Explain.

*** END OF PART I ***


Turn in both these examination Questions and your answers.


After a 10 minute break, all students will begin Part II together.