W.B. Fisch May 10, 2001


Final Examination

General Instructions

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

I...............................45 minutes

II..............................60 minutes

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

IV..............................30 minutes

V...............................45 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 III 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/type/print on one side of the page only.

4. Turn in your bluebooks/answers and this examination sheet at the end of the examination to the secretaries.

5. There are 9 pages in this examination, including this cover sheet.  Make sure that you have the complete test.


(45 Minutes)

The City of Gotham built a new city hall, and decided -- instead of buying or leasing a large number of expensive art objects for the purpose -- to invite local artists to display their works on the walls of the public hallways in the building. The city administration decided, in order to save more money, to commission a private organization called the Arts Council to administer the program of selecting the works for display. When the city announced the program, its spokesperson specifically stated that the art works would be screened by the Council "for content and professional presentation" and that "offensive or politically motivated art" would be excluded by the Council if it felt that it might "present a problem for a conservative public sector". In its letter to the Arts Council offering this commission, essentially the same message was conveyed, that the city did not want to have "various citizens with a conservative 'bent' raise issues that have caused trouble for the National Endowment for the Arts" and thereby "ruin this great opportunity for introducing the arts to our citizens".

In fact, however, in putting together 3 consecutive exhibits shown over the first 6 months of the program, the Arts Council did not screen any art at all. It put out a general invitation to the art community in the city for artists to submit work, and simply accepted whatever was offered. In the first exhibit, one sculpture of a "starving man" prompted complaints by several people that it "sent a bad message" and ought to be removed, but it wasn't; in the second and third, several pieces portrayed nude people without causing any complaints.

For the 4th exhibit, the Arts Council actively solicited work from John Jasper, a well-known local artist who had not submitted previously and (it turned out) had not received the initial invitation. He signed a contract with the Council to exhibit 3 small sculptures for the 2 months of the exhibit. One of the three sculptures depicts a large, nude, headless woman from the back, and carries the title "To the Democrats, Republicans and Bipartisans"; in the first week that the sculptures were displayed, several people complained about it as "sexual", "offensive", "disgusting", or "derogatory to women". No complaint was received about the other two works.

After receiving these complaints for a week, the city manager (who had been instrumental in getting the project going and had signed the above announcement and commission offer) ordered the Arts Council to remove all three works from the exhibit. As this was done, the city manager wrote a letter to Jasper explaining that "we firmly believe that this program should remain out of the political realm; displaying art which could be misconstrued by activists as 'sexual' or 'prurient' will make the decision whether to maintain the program a political one, thereby endangering the entire program." The letter acknowledged that the work should have been screened before it was committed to the display.

Jasper now institutes an action in an appropriate federal court against the city and the Arts Council, alleging that the exclusion of his work from the city hall exhibit was a violation of the federal constitution. How should the court rule on this claim? Explain.


(60 Minutes)

The State of Jefferson adopts a "Scholarship Program" to support attendance of children at non-public schools, located within the boundaries of public school districts in which the public schools have failed to meet specified performance standards largely based on student test scores. Under the program scholarships are to be awarded to the students' families, but only to those who have actually enrolled in a participating private school; the checks are made out to the parents, but mailed to the schools, where the parents must endorse the checks over to the schools. No restrictions are attached to the schools' use of the funds once received. Private schools that wish to participate must apply to the state's department of education, and must meet certain conditions: (1) they must not charge any student more than $3000 in tuition per year; (2) they may not discriminate on the basis of race, religion or ethnic background; (3) they must not advocate or foster unlawful behavior; (4) they must not teach hatred of any person or group on the basis of race, ethnicity, national origin or religion. The program also gives absolute priority to low-income families (incomes less than twice the poverty level), and allows such scholarships to other families only after all low-income families wishing to attend eligible schools have been served. The scholarships are at two levels, both keyed to the amount of tuition actually charged by the particular school: for low-income families, it is 90% of the actual tuition, and for others it is 75% of the actual tuition. Families who receive scholarships are not relieved of any taxes used to fund public schools (almost entirely real property taxes); but their children are not counted for purposes of the state aid given to public school districts based on student population, which amounts to approximately $1,200 per pupil per year.

At the time the scholarship program is instituted, one school district has been identified as failing the test standards; it is in Hamilton, the state's largest city in its only major metropolitan area, which also has the highest proportion of poor families and ethnic minorities. In response to the announcement of the program, 60% of the private schools located within the district apply and meet the requirements. 95% of these participating schools (measured by student population) are religious schools which include religious instruction and worship in their daily programs and generally profess the need to interweave religion with "secular" subjects. 90% of these are Christian of various denominations. Most of the non-participating private schools are secular institutions which charge students more than the maximum amount of tuition for eligibility in the program. In the initial round of scholarship recipients, the families' choices exactly mirror the ratios of religious and Christian school populations: 95% choose religious schools, 90% Christian schools.

John and Mary Smith, residents of a suburb of Hamilton whose 2 children attend one of the non-participating private schools, and who are African-Americans and members of the First Christian Church in their town, now sue the State in an appropriate federal court to enjoin the implementation of the scholarship program on the ground that it violates the 1st and 14th Amendments of the federal constitution. How should the court rule on this claim? Explain.


(Short Answer Questions)

(See Instructions para. 2)

1. Oliver McNerd is a former programmer for Microsoft Corp. who resigned because he believed the company was too greedy and didn't do enough to alleviate poverty and suffering in the country. A year after his resignation, McNerd appears outside the company headquarters in Seattle on a Sunday afternoon, when the company is closed for the weekend but there is a substantial crowd of tourists around the building. He is carrying a placard which says: "Bill Gates, you are a greedy son-of-a-b_____ and your wife is a sleazy prostitute." McNerd is arrested and charged with violation of a city ordinance which forbids the utterance in a public place of words likely to cause the average person to fight. McNerd moves to dismiss the charges on the ground that they violate the First Amendment, and the trial judge grants the motion. Did the court err?

2. President Bush negotiates and signs an agreement with Taiwan to sell strategic military equipment to that country. The equipment sold is already made and in the possession of the U.S. Army. Jesse Helms, chairman of the Senate Foreign Relations Committee which handles all treaties submitted by the President for advice and consent to ratification, now sues the President in an appropriate federal court to enjoin implementation of this arms agreement, on the sole ground that the President failed to submit the agreement to the Senate for its advice and consent. The court grants the injunction. Did the court err?

3. Congress holds hearings which show that vandalism and other wilful destruction of property costs insurance companies hundreds of millions of dollars annually nationwide, causing premiums to be high and limiting the insurers' capacity to provide investment capital for business. It then proceeds to enact a statute making it a federal crime willfully to damage property which is insured. Jack Ripper, a homeless person in St. Louis, is charged under this statute for setting fire to a building he was trespassing in. Jack moves to dismiss the charges on the ground that Congress lacks constitutional power to enact this statute. The court grants the motion. Did the court err?

4. The City of Oxblood, situated in the State of Gore on the border of Gore and the neighboring State of Clinton, adopts an ordinance requiring all city employees to be residents of the city. After the ordinance goes into effect, Albert Williams applies for a job in the Oxblood City Clerk's office. Williams is a resident of the city of Hubbell, just across the state line in Clinton; Oxblood and Hubbell form a substantial metropolitan area and many residents of each city have jobs in the other. Williams is turned down for the job solely because he is not an Oxblood resident. Williams now sues in federal court in Gore to have the Oxblood ordinance declared unconstitutional. The judge renders judgment for Williams on the sole ground that the ordinance violates the Interstate Commerce Clause of the federal constitution. Did the judge err?

5. The Senate, by majority vote, adopts a rule which precludes any vote either of the Judiciary Committee or of the Senate as a whole on a judicial nominee when either of the nominee's home state senators opposes the nomination. Salmon Chase, a Bush nominee from Alaska who was opposed by both Senators and therefore never got to a vote, institutes action in the U.S. District Court for the District of Columbia to enjoin implementation of the rule because it violates the bicameral adoption and presentment requirements of Article I §7 of the Constitution. What ruling?


(30 Minutes)

The City of Lackadelphia, State of Franklin, joins in a consortium with several other cities in the central part of the state to acquire a new landfill in the area, with each city bearing a proportionate share of the cost of operating the landfill. In order to finance its share of those costs, Lackadelphia adopts an ordinance requiring all producers of solid waste within the city - residential, commercial and governmental producers alike - to deliver their solid waste to a new city-owned waste processing plant which will prepare the waste for delivery to the new landfill. The processing plant imposes a charge of $50/ton, but for that price also provides the service of separating out recyclable materials and giving the producer the option of taking them back and marketing them itself or having the city market them for the producer's account. The ordinance expressly exempts all waste which is intended by the producer to be disposed of outside the state, from the obligation to deliver it to the city's processing plant. The processing plant offers the same service for waste from non-local sources, but charges $60/ton.

Acme Tool & Die Co., which owns and operates a manufacturing plant in Lackadelphia, now sues the city in an appropriate court to enjoin enforcement of the ordinance, on the ground that it violates the federal constitution. It specifically shows that there is another processing plant with landfill in another Franklin city 50 miles away, which offers the same service for $35/ton, and does a substantially more thorough job of separating out and marketing recyclable materials, so that even with the additional cost of transportation to that site the company would save $5/ton by comparison with Lackadelphia's facility. Using an out-of-state facility would be substantially more expensive for Acme than either in-state alternative. The evidence further shows that no out-of-state waste producers have ever used the Lackadelphia facility.

How should the court rule on Acme's claim? Explain, but do not discuss any possible claim for a taking of Acme's property for a public purpose without just compensation.


(45 Minutes)

The State of Burr has a statute making abuse of a child by those responsible for its care, custody or control a crime punishable by fine or imprisonment, as well as grounds for removing the child from such custody, care or control. The statute defines "abuse" and "those responsible" as follows:

"Abuse", any physical injury, sexual abuse, or emotional abuse inflicted on a child other than by accidental means by those responsible for the child's care, custody, and control, except that discipline including spanking, administered in a reasonable manner shall not be construed to be abuse;

"Those responsible for the care, custody, and control of the child", persons including but not limited to the parents or guardian of a child, other members of the child's household, or those exercising supervision over a child for any part of a twenty-four hour day. Those responsible for the care, custody and control shall also include any adult who, based on their relationship to the parents of the child members of the child's household or the family, has access to the child.

The Burr legislature now amends the definition of "abuse" to include "smoking tobacco, consuming alcohol or using narcotic drugs by a pregnant woman in such quantity that the health of the fetus is endangered." The amendment goes on to provide that in the case of tobacco more than one cigarette a day, and in the case of alcohol more than one ounce a day is presumed to be dangerous to the fetus, while any use of narcotics other than on a doctor's prescription constitutes an offense. The legislative history of the statute shows only that the committee which proposed the bill held extensive hearings on the effects of those three activities on the post-natal health of the child, and that a wide variety of health problems, including birth defects, cancer and chronic illnesses, have been connected with the mother having engaged in such activities during the early stages of pregnancy.

Juanita Johnson, who is two months pregnant, is charged with violation of the statute by smoking as much as a pack a day of cigarettes. She moves to dismiss the charges on the ground that the statute violates the due process clause of the 14th Amendment to the federal constitution. How should the court rule on this motion? Explain.