W.B. Fisch May 1, 1999


Final Examination

General Instructions

1. This is a four-hour examination, consisting of six questions, to each of which a suggested time is assigned reflecting relative value for grading purposes:

I...............................40 minutes

II..............................30 minutes

III.............................30 minutes

IV..............................40 minutes

V...............................40 minutes

VI .............................30 minutes

The suggested times leave 30 minutes for reflection and/or review, but of course the actual allocation of your time is up to you.


2. Question VI consists of 5 short-answer questions, each of which requires (i) an answer and (ii) a brief explanation, preferably in one-third of a bluebook page or less.  The following in an example to suggest form only:

"No.  The First Amendment absolutely protects the production of paper, and this law inhibits such production."

3. Please write on one side of the page only.

4. Turn in your bluebooks and this examination sheet at the end of the examination to the table in front of the Courtroom.

5. There are 10 pages in this examination, including this cover sheet.  Make sure that you have the complete test.


(40 Minutes)

In 1994 Congress enacted the Violence Against Women Act, which contains (among many others) the following provisions codified in 42 U.S.C. 13981:

"(a) Purpose. Pursuant to the affirmative power of Congress to enact this part under section 5 of the Fourteenth Amendment to the Constitution, as well as under section 8 of Article I of the Constitution, it is the purpose of this part to protect the civil rights of victims of gender motivated violence and to promote public safety, health, and activities affecting interstate commerce by establishing a Federal civil rights cause of action for victims of crimes of violence motivated by gender.

"(b) Right to be free from crimes of violence. All persons within the United States shall have the right to be free from crimes of violence motivated by gender (as defined in subsection (d) of this section).

"(c) Cause of action A person (including a person who acts under color of any statute, ordinance, regulation, custom, or usage of any State) who commits a crime of violence motivated by gender and thus deprives another of the right declared in subsection (b) of this section shall be liable to the party injured, in an action for the recovery of compensatory and punitive damages, injunctive and declaratory relief, and such other relief as a court may deem appropriate.

"(d) Definitions

For purposes of this section-

(1) the term "crime of violence motivated by gender" means a crime of violence committed because of gender or on the basis of gender, and due, at least in part, to an animus based on the victim's gender; ..."

The statute's definition of "crime of violence" incorporates both state and federal definitions of felonies against the person and against property which threaten the safety of a person, and applies regardless of whether any criminal proceeding is actually instituted against the perpetrator. It also applies regardless of the relationship between the perpetrator and the victim.

Congressional reports underlying enactment of the VAWA include the following finding based on extensive evidence:

"crimes of violence motivated by gender have a substantial adverse effect on interstate commerce, by deterring potential victims from traveling interstate, from engaging in employment in interstate business, and from transacting with business, and in places involved, in interstate commerce; ... [and] by diminishing national productivity, increasing medical and other costs, and decreasing the supply of and the demand for interstate products."

In addition, the reports cite studies concluding "that crimes disproportionately affecting women are often treated less seriously than comparable crimes affecting men" and that state laws and enforcement policies reflect bias throughout the entire area of domestic relations and family law.

Jane Doe now sues Richard Roe and Anthony Adverse in an appropriate federal district court pursuant to this statute. She alleges that she was a student at State University, where Roe and Adverse were also students and members of the school's football team. Doe alleges further that she met Roe and Adverse at a school dance, and that shortly after she met them the two pinned her down on a bed in her dormitory and forcibly raped her.

Roe and Adverse now move to dismiss the action on the sole ground that the statute under which it is brought is unconstitutional. How should the court rule on this motion? Explain.


(30 Minutes)

The constitution of the State of Cecil authorizes the State Board of Commerce and Industry (Board) to "enter into contracts for the exemption from ad valorem taxes of a new manufacturing establishment or an addition to an existing manufacturing establishment, on such terms and conditions as the board, with the approval of the governor, deems in the best interest of the state." Pursuant thereto, the Board incorporates in each such tax exemption its Rule One, which requires that, inter alia, the manufacturer and its contractors in acquiring goods and services for the new or additional construction must give preference and priority to Cecil manufacturers, suppliers, contractors and labor "except where not reasonably possible to do so without added expense or substantial inconvenience or sacrifice in operating efficiency." Rule One in practice has been interpreted as requiring that 80% of the construction cost of tax exempt projects must go to in-state subcontractors or workers, and that the "added expense" must be at least 10% of the cost that could be achieved without compliance with Rule One.

Cecil Contractors, Inc.(CCI) is a trade association consisting of member contractors who are engaged in the business of constructing industrial plants in Cecil and elsewhere. A large majority of the members are Cecil companies, most have bid on tax-exempt projects, and most have used some out-of-state subcontractors. A survey of members shows that most would use more out-of-state subcontractors on tax-exempt projects but for Rule One, and many have refrained from bidding on certain tax-exempt projects because of the added expense and inconvenience of complying with Rule One.

CCI now sues the Board in an appropriate federal court to enjoin enforcement of Rule One on the ground that it violates the federal constitution. The Board moves to dismiss the complaint, which alleges the above facts, for failure to state a claim on which relief can be granted. How should the court rule on this motion, assuming that the Board does not enjoy sovereign immunity under the 11th Amendment? Explain.


(30 Minutes)

Alice Walker is a psychiatric counselor who has been employed in PORTAL, a state-run, long-term residential treatment center for voluntarily committed, chronic mentally ill patients, located at a state hospital. She and other care-providers at the program were members of the civil service staff of the Division of State Health Services in the state's Department of Public Welfare, and were covered by a collective bargaining agreement between the Division and a union representing all civil service employees of the Division's facilities. The agreement specified that the Division would not contract or sub-contract work "when such action will cause the elimination of classified positions or preclude the performance of work typically and historically accomplished by civil service personnel within the institution".

The State Legislature, finding that the PORTAL program and other state-run voluntary commitment programs are inefficient and ineffective and concluding that the state's resources would be better spent on more narrowly focused, privately administered programs, now enacts a statute directing the Division to eliminate the PORTAL program and to establish a consolidated, privately operated program for voluntary treatment of mentally ill chemical abusers (one of the largest categories of PORTAL patients). Alice and many of her co-workers are laid off pursuant to this direction, and her challenges to this action under state law, pursued through the administrative process, are all finally rejected.

Alice now brings an action against the Division in an appropriate federal court on the sole ground that her layoff violates the federal constitution. How should the court rule on this claim? Explain.


(40 Minutes)

Congress adopted the Antiterrorism and Effective Death Penalty Act in 1996, which among other things authorized the Secretary of the Treasury to designate certain organizations as terrorist organizations. Among the consequences of such designation is the application of §303 of the AEDPA, which provides:

"Whoever, within the United States or subject to the jurisdiction of the United States, knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so, shall be fined under this title or imprisoned not more than 10 years, or both." [18 U.S.C. § 2339B(a)].

The AEDPA defines the term "material support or resources" as

"currency or other financial securities, financial services, lodging, training, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel, transportation, and other physical assets, except medicine or religious materials."

The organizations designated by the Secretary pursuant to this law include the Kurdistan

Workers' Party a.k.a. PKK ("PKK").

John Jones, a U.S. citizen, and Humanitarian Advocacy (HA), an organization of which Jones is a leading member, engage in advocacy for the self-determination and human rights of minority populations subject to discrimination around the world. They seek to provide support to the humanitarian and political activities of the PKK, but have not provided such support, fearing criminal investigation, prosecution, and conviction under the AEDPA. Specifically, they allege that they would like to provide support to the PKK in the following ways:

"(1) solicit funds for, and make cash contributions to the PKK's political branch, for its lawful political work on behalf of the Kurds' human rights and for humanitarian assistance to Kurdish refugees; (2) advocate on PKK's behalf before the UN Commission on Human Rights and the United States Congress; (3) train the PKK in how to engage in political advocacy and on how to use international law to seek redress for human rights violations; (4) write and distribute publications supportive of the PKK and the cause of Kurdish liberation; (5) advocate for the freedom of Turkish political prisoners convicted of being PKK members or supporters; (6) work with PKK members at peace conferences and other meetings toward the cause of peace and justice for the Kurds; and (7) provide lodging to PKK members in connection with these activities."

Jones and HA now institute an action in an appropriate federal court against the Secretary and others, seeking an injunction against enforcement of §303 on the grounds that it violates the First and Fifth Amendments of the federal constitution. How should the court rule on this claim? Explain.


(40 Minutes)

Gotham is a large city in the North with a racially and ethnically diverse population. It has a unified school district which has included, for more than a century, several secondary schools designed for university preparation, admission to which is based on competitive examination scores and grade point average. In the 1970's a desegregation suit established that the Gotham School Board had been operating a dual school system as a whole in which African-American and Hispanic students in particular were intentionally segregated from white students. In that suit, there was no specific evidence of intentional segregative acts with respect to admission to the "examination schools", but the percentage of minority students admitted to those schools (5%) was so much lower than the percentage of minorities in the school population as a whole (45%) that the court's decree required the Board to set aside 35% of the admissions to the "examination schools" for African-American and Hispanic applicants. The decree imposed similar race-conscious remedies for all other aspects of the school system, including pupil assignment to other schools, faculty and staff integration, and distribution of physical plant and maintenance

In the 1980's the Board sought relief from the remedial decree, showing that they had eliminated schools predominantly of one race by various means of pupil reassignment and that any changes in the racial balances in school population were occurring entirely as a result of demographic changes over which the system had no control. The court dissolved the pupil-assignment portion of the decree, though it did not find comparable progress in other areas and left the remainder of the decree in place. Nonetheless, the Board continued the 35% set-aside for minority applicants to the "examination schools" until 1998, when a disappointed white applicant successfully challenged its constitutionality and the set-aside was discontinued.

Concerned that with the next round of examinations the proportion of minority admissions to the "examination schools" would drop to pre-1970's levels, and that those schools would thereby lose the diversity of backgrounds and viewpoints the Board now considers essential to a well-rounded college-preparatory education, the Board has proceeded to adopt a new admission plan. Under that plan a "qualified applicant pool" (QAP) is to be formed for each school, consisting of the top 50% of all applicants for that school based on the examination/grade-point formula. Half of the open seats for that school are then to be filled in rank order of their scores. The remaining qualified applicants (RQAP) are then divided into five racial/ethnic groups: whites, blacks, Hispanics, Asians and Native Americans. The last half of the open seats are then filled from each racial/ethnic group in the same proportion as they represent of the total RQAP.

In the most recent application round, the first under the new system, Hester Prynne ranked 91st under the scores/grades formula of 705 QAP for the Classical High School, which had 92 available seats. The first 46 seats were filled with students ranked 1-46. The RQAP for this round was 28% black, 40% white, 19% Asian, 12% Hispanic, and 1% Native American. The remaining 46 seats, therefore, were assigned to 13 blacks, 18 whites, 9 Asians, and 6 Hispanics. Hester was 20th on the list of whites, and 10 of the minority students admitted were ranked between 95th and 150th overall.

Answer each of the following questions concerning the above fact situation.

(A) Hester now sues in an appropriate federal court for a declaration that the new plan is unconstitutional and that she should be granted admission to the Classical High School. How should the court rule on her claim? Explain.

(B) Assume instead that the School Board's policy is now simply to require every applicant to take the competitive test, to delegate the admissions decision to a specially appointed committee, and to instruct it to take other educationally appropriate factors into account. Assume further that the committee did not disclose its methods, but that in fact all of the students who were admitted ahead of applicants ranking above them on the scores/grades formula were members of racial or ethnic minorities. What ruling on Hester's claim? Explain.


Short Answer Questions

(See Instructions para. 2)