Constitutional Law - Knowledge Set

Question 1

Under the Due Process Clause, the following government acts are considered deprivations of liberty except:

A Denial of the right to engage in gainful employment

B Loss of a freedom provided by the Constitution

C Defamation without a tangible loss

D Denial of the right to vote

Answer 1

C

A government act that causes defamation without a tangible loss is not considered a deprivation of liberty under the Due Process Clauses. The term “liberty” includes more than just freedom from bodily restraints. A deprivation of liberty occurs if a person (i) loses significant freedom of action; or (ii) is denied a freedom provided by the Constitution or a statute. Damage to one’s reputation generally does not involve a loss of significant freedom of action or of a freedom provided by law. Therefore, it generally does not constitute a deprivation of liberty. (However, it can, if the damage is so severe that employment or associational opportunities are lost.) Government acts that cause denial of the right to engage in gainful employment, loss of a freedom provided by the Constitution, or denial of the right to vote are within the definition of deprivation of liberty under the Due Process Clause.

Question 2

For due process purposes, a person will be deemed to have a property interest in continuation of a government benefit if the person has:

A A legitimate claim or entitlement to the benefit

B A right to, rather than privilege in, the benefit

C An investment-backed expectation with regard to the benefit

D A unilateral expectancy in the benefit

Answer 2

A

Due Process claims can be based on legitimate claims or entitlements to property. The term property is broader here than personal belongings, realty, chattels, and the like. But an abstract need or desire or a unilateral expectation of the benefit is not enough. There must be a legitimate claim or entitlement to the benefit based on state or federal law or policy. For example, a government employee who may be fired only for cause has a legitimate claim to continued employment and thus has a property interest in her job, while an at-will employee has, at best, a unilateral expectancy of continued employment and no property interest. “A right to, rather than privilege in, the benefit” is incorrect. It describes how the courts formerly differentiated between protected property interests (rights) and unprotected interests (privileges). These terms are no longer used by the courts for these purposes. The term investment-backed expectations is somewhat relevant to property interests, as it is sometimes a factor considered in determining whether there has been a governmental taking of private property under the Fifth Amendment. However, it generally is not considered in deciding whether a person has a property interest in continuation of a government benefit. As discussed above, a unilateral expectancy does not give rise to a sufficient property interest; there must be a legitimate claim or entitlement under law or policy rather than a mere expectancy.

Question 3

Which of the following best reflects the factors a court would consider when determining the procedures required under the Due Process Clause when a person faces deprivation of a protected benefit?

A The importance of the individual’s interest, the person’s opportunity to be represented by counsel, and the government’s interest in efficiency

B The value of specific procedural safeguards of the person’s interest, the person’s opportunity to be represented by counsel, and the government’s interest in efficiency

C The importance of the individual’s interest, the government’s interest in fiscal and administrative efficiency, and the person’s opportunity to be represented by counsel

D The importance of the individual interest, the value of specific safeguards to that interest, and the government’s interest in efficiency

Answer 3

D

In determining the procedures required under the Due Process Clause, the courts consider: (i) The importance of the individual’s interest that is involved, (ii) The value of specific procedural safeguards of the individual’s interest, and (iii) The government’s interest in fiscal and administrative efficiency. The opportunity for the person to be represented by counsel is not a factor the courts consider in determining what type of procedure is required. There is no across-the-board right to counsel under the Constitution in any event. Thus, the choices that include this as a factor are incorrect.

Question 4

What standard of review usually is applied when a law involving a fundamental right is challenged?

A A strict scrutiny standard, and the government has the burden of proving that the law is necessary

B A strict scrutiny standard, and the challenger has the burden of proving that the law is unconstitutional

C An intermediate scrutiny standard, and the government has the burden of proving that the law is substantially related to an important government interest

D An intermediate scrutiny standard, and the challenger has the burden of proving that the law is unconstitutional

Answer 4

A

A strict scrutiny standard is applied when a law involves a fundamental right (or intentional discrimination based on a suspect classification). The government has the burden of proving that the law is necessary to achieve a compelling or overriding government purpose. Thus, the choices indicating that an intermediate scrutiny standard is applied and the choices indicating that the challenger has the burden of proving that the law is unconstitutional are incorrect.

Question 5

When a government classification intentionally discriminates on the basis of gender or legitimacy, the classification will be found unconstitutional unless the government can prove that the classification is at the least:

A Necessary to achieve a compelling or overriding government purpose

B Substantially related to a compelling or overriding government purpose

C Necessary to achieve an important government purpose

D Substantially related to an important government purpose

Answer 5

D

When a classification based on gender or legitimacy is challenged, an intermediate scrutiny standard is applied, under which the classification will be found invalid unless the government can show it is substantially related to an important government purpose. This is an intermediate level of scrutiny. The Supreme Court applies intermediate scrutiny to equal protection challenges involving intentional discrimination on the basis of gender or legitimacy. While the classification would be upheld if the government proved it was necessary to achieve a compelling or overriding government purpose, this standard is more demanding than is required, so it is not true that the classification will be found invalid unless the government can prove that it is necessary to achieve a compelling or overriding government purpose. The choice indicating that the classification must be substantially related to a compelling or overriding government purpose is incorrect because it pairs the “substantially related” language of the intermediate scrutiny test with the “compelling interest” needed under strict scrutiny. As indicated above, the intermediate scrutiny test applies. Similarly, the choice indicating that the classification must be necessary to achieve an important government purpose mixes strict scrutiny’s “necessary” language with intermediate scrutiny’s “important government purpose” standard and so is incorrect.

Question 6

Which of the following statements is correct regarding government action challenged under the Due Process or Equal Protection Clause where no fundamental right or suspect or quasi-suspect classification is involved?

A The law is valid only if it is substantially related to a legitimate government purpose

B The burden of proof is on the government to show that the law is necessary

C The law will be upheld unless it is arbitrary

D The law must be the least burdensome means to achieve the legislative goal

Answer 6

C

If government action is challenged under the Due Process or Equal Protection Clause, and no fundamental right or suspect or quasi-suspect classification is involved, the law will be upheld unless it is arbitrary or irrational. A rational basis standard applies. The law is valid if it is rationally related to a legitimate government purpose; it need not be substantially related to a legitimate purpose. The burden of proof is on the CHALLENGER to show that the law is unconstitutional, NOT on the government to show that it is necessary. The law need NOT be the least burdensome means to achieve the legislative goal. The rational relationship test does not require a tight fit between the goal sought and the law employed—just a rational connection.

Question 7

Which of the following is NOT required for federal court jurisdiction?

A An economic injury

B A real, live controversy

C Harm or an immediate threat of harm

D A concrete stake in the outcome

Answer 7

A

An economic injury to the plaintiff is not required for federal court jurisdiction. An injury in fact must be alleged, and it must be more than the mere theoretical injury that all persons suffer by seeing their government engage in unconstitutional actions, but it need not be economic. In some cases, the Supreme Court has found that an individual is harmed because the alleged illegal or unconstitutional action has an impact on the person’s well-being, the environment, etc. A real, live controversy is required for federal court jurisdiction. A federal court will not hear a case that has become moot; a real, live controversy must exist at all stages of review, not merely when the complaint is filed. Harm or an immediate threat of harm is required for federal court jurisdiction. The case or controversy requirement prohibits federal courts from hearing cases before they are ripe for review—i.e., before a law has been enforced or is threatened to be enforced. A concrete stake in the outcome is required for federal court jurisdiction. A federal court will not decide a constitutional challenge to a government action unless the person who is challenging the government action has standing to raise the constitutional issue (i.e., can show an injury in fact that can be remedied by a decision in her favor).

Question 8

For a plaintiff to have standing to bring an action in federal court, the following are all required:

A Redressability; economic loss; causation

B Injury in fact; causation; redressability

C Causation; economic loss; injury in fact

D Only causation and economic loss

Answer 8

B

Standing requires an injury in fact, causation, and redressability. An injury in fact will be present if the plaintiff has a concrete stake in the controversy. Some specific injury must be alleged, and it must be more than merely theoretical. Causation will be present if there is a causal connection between the conduct complained of and the injury. Redressability is a requirement that a ruling favorable to the plaintiff will eliminate the harm to her. An economic loss is not required for standing. Impact on a person’s well-being and environmental injuries are sufficient as well. Any injury in fact is sufficient.

Question 9

The Supreme Court can review a decision from the highest court in a state if:

A Adequate and independent state grounds support the decision

B Review of the state grounds would render an advisory opinion

C The state court decision is based on an unsettled question of state law

D The state court decision turns on federal grounds

Answer 9

D

If the state court decision turns on federal grounds and is from the highest court in the state, the Supreme Court can review the state court decision. If adequate and independent state grounds support the decision, the Supreme Court will not review that state court decision. If the state grounds are fully dispositive of the case and do not depend on federal case law interpretation, there is no need for federal review. If review of the state grounds would render an advisory opinion, the Supreme Court will not review the state court decision. The Supreme Court will not review a case if its decision will have no effect on the judgment rendered by the state court; a case or controversy is required. If the state court decision is based on an unsettled question of state law, the Supreme Court will not review the state court decision. The federal court will abstain from such a case to allow the state court to settle the question of state law.

Question 10

Federal courts have judicial power over cases and controversies involving all of the following EXCEPT:

A A case between a state and a citizen of that state

B A case arising under the Constitution, laws, or treaties of the United States

C A case between citizens of different states

D A case in which the United States is a party

Answer 10

A

A case between a state and a citizen of that state is generally not within the jurisdiction of the federal courts. The Eleventh Amendment generally prohibits federal court jurisdiction in such a case. However, there are a few exceptions (e.g., when the state waives this rule). Under Article III, federal courts have power to hear a case arising under the Constitution, laws, or treaties of the United States, a case between citizens of a different state, and a case in which the United States is a party.

Question 11

To pass constitutional muster under the First Amendment, a statute or ordinance that burdens speech based on its content generally must be:

A Necessary to serve a compelling state interest

B Rationally related to a legitimate state interest

C Narrowly tailored to achieve an important government interest

D Substantially related to an important governmental objective

Answer 11

A

A statute or ordinance that burdens speech based on its content must be necessary to serve a compelling state interest in order to pass constitutional muster. “Narrowly tailored to achieve an important government interest” is an intermediate level of scrutiny and is too low a standard for regulations based on content. However, an intermediate standard of scrutiny often applies to non-content-based regulations of the conduct related to speech. “Substantially related to an important governmental objective” also reflects an intermediate level of scrutiny and therefore is incorrect because it is too lenient a standard for regulation of speech based on content, as explained above. “Rationally related to a legitimate state interest” is the most lenient standard of scrutiny applied under the First Amendment and generally does not apply in cases of content regulation.

Question 12

To be valid, a time, place, and manner regulation of a limited public forum must be:

A Viewpoint neutral and narrowly tailored to achieve an important government interest

B Viewpoint neutral and rationally related to a legitimate government purpose

C Content neutral and rationally related to a legitimate government purpose

D Content neutral and narrowly tailored to achieve an important government interest

Answer 12

B

To be valid, a time, place, and manner regulation of a limited public forum must be viewpoint neutral and rationally related to a legitimate government purpose. “Viewpoint neutral and narrowly tailored to achieve an important government interest” is incorrect because regulations of limited public forums need not be narrowly tailored to achieve an important government interest—the standard is lower (rationally related to a legitimate government purpose) as indicated above. “Content neutral and rationally related to a legitimate government purpose” is incorrect because regulation of a limited public forum can be based on content, but it must not be based on viewpoint. For example, a school gym might be opened to the public to host a debate on a specific issue (e.g., whether the city should grant a permit to an abortion clinic). The school can prohibit people from raising other issues (e.g., whether the city needs new storm sewers) to regulate the content in the open forum during the debate, but the school cannot allow people against the clinic to speak while prohibiting those in favor from speaking, because that would not be viewpoint neutral. “Content neutral and narrowly tailored to achieve an important government interest” is incorrect because, as discussed above, it states both parts of the test incorrectly.

Question 13

If a regulation of speech is found to be overbroad, but judged in relation to its plainly legitimate sweep it does not prohibit a substantial amount of protected speech, may it be enforced?

A Yes, against anyone because it does not prohibit a substantial amount of unprotected speech

B No, because it is overbroad, but judged in relation to its plainly legitimate sweep

C Yes, but only against persons engaging in activities that are not constitutionally protected

D No, because it is unconstitutional

Answer 13

C

The correct answer is yes, but only against persons engaging in activities that are not constitutionally protected. The First Amendment, among other things, protects against government infringement of speech. Regulations that prohibit more speech than necessary are overbroad and may be unconstitutional. However, if a regulation is not too overbroad, the Court allows it to be enforced against people whose speech or speech activities are not protected by the Constitution. On the other hand, if the regulation prohibits a substantial amount of protected speech when judged in relation to its plainly legitimate sweep, it is facially invalid and cannot be enforced against anyone. The choice indicating that the regulation may be enforced against anyone is incorrect, because, as explained above, it cannot be enforced against persons engaged in protected speech or speech activities. The choices indicating that the regulation cannot be enforced are incorrect for the reasons stated above.

Question 14

Which of the following is considered protected speech under the First Amendment?

A Obscenity

B Fighting words

C Speech creating a clear and present danger of imminent lawless action

D Commercial speech

Answer 14

D

Commercial speech is protected by the First Amendment. However, false or misleading commercial speech is not protected by the First Amendment. Moreover, commercial speech can be regulated if the regulation serves a substantial government interest, directly advances that interest, and is narrowly tailored to serve that interest. Fighting words, speech creating a clear and present danger of imminent lawless action, and obscenity all are forms of unprotected speech, such that content-based restrictions are allowed.

Question 15

Under the clear and present danger test, speech may be sanctioned whenever it:

A Is directed to producing or inciting imminent lawless action and is likely to produce such action

B Advocates the use of force against the government, whether presently or in the future

C Advocates lawless action, whether presently or in the future

D Is patently offensive in affronting contemporary community standards

Answer 15

A

Speech may be punished or banned under the clear and present danger test whenever it is directed to producing or inciting imminent lawless action and is likely to produce such action. “Advocates the use of force against the government, whether presently or in the future” is incorrect because while such action would be lawless, this choice lacks the imminence requirement. That call to lawlessness has to be “now” and it must be under circumstances likely to produce the action in order to be unprotected speech. The choice “advocates lawless action, whether presently or in the future,” is wrong for the same reason. The choice “is patently offensive in affronting contemporary community standards” is part of the test to determine whether something is obscene and is not part of the clear and present danger test.

Question 16

To help reduce a rising crime rate among teenage boys in a city, a scout leader decided to organize an overnight jamboree to get teens interested in scouting. The scout leader met with the city’s parks commissioner and requested a permit to camp at a large city park located on the oceanfront. The parks commissioner told the scout leader that a city ordinance prohibited large organized use of the park during the evening and all overnight camping. The commissioner explained that the city wished to keep the park open for general use during the evening, when most people were off work, and the park was cleaned overnight. The scout leader brought an action in federal district court, seeking to compel the city to allow overnight camping for this one special occasion.

If the court determines that the ordinance is valid, what will be the basis for its decision?

A The ordinance is rationally related to a legitimate government interest and burdens the First Amendment rights involved no more than is reasonable under the circumstances.

B The ordinance is narrowly tailored to serve an important government interest and does not unreasonably limit alternative channels of communication.

C The ordinance is substantially related to a legitimate government interest and burdens the First Amendment rights involved no more than is reasonable under the circumstances.

D The ordinance is rationally related to a legitimate government interest and does not unreasonably limit alternative channels of communication.

Answer 16

B

The court will base its decision on its determination that the ordinance is narrowly tailored to serve an important government interest and does not unreasonably limit alternative channels of communication. While the First Amendment protects the freedoms of speech and assembly, the government may reasonably regulate speech-related conduct in public forums through content‑neutral time, place, and manner regulation. To be valid, government regulations on speech and assembly in public forums must be content neutral and narrowly tailored to serve an important government interest, and must leave open alternative channels of communication. Here, the ban on camping overnight in the park, a content-neutral regulation of a public forum, would be evaluated by the court using the standard in choice (B). (A) and (D) are incorrect because the rational relationship test is used for restrictions on free speech rights in nonpublic forums. Here, because the park is a public forum, the more restrictive test stated in (B) is used. (C) is incorrect because it misstates both parts of the standard.

Question 17

A state statute makes criminal “all speechmaking, picketing, or public gathering of any sort on the steps of the supreme courthouse Monday through Friday, between the hours of 8:30 a.m. and 4:30 p.m., when court is in session.” A citizen is upset about a supreme court decision that was just released and stands on the steps of the courthouse at noon, while court is in session, handing out leaflets and exhorting passersby to vote the state supreme court justices out of office.

If the citizen is prosecuted for violation of the statute, which of the following best describes the applicable burden of proof?

A The state will have to show that there was a compelling need for the statute and that no less restrictive alternatives existed to meet that need.

B The state will have to show that the statute was narrowly tailored to serve an important
government interest and leaves open alternative channels of communication.

C The citizen will have to show that there was no compelling need for the statute and that less restrictive alternatives were available to accomplish the same goals.

D The citizen will have to show that there was no reasonable basis for enacting the statute.

Answer 17

D

The citizen will have to show that the statute was not reasonably related to a legitimate government purpose. Other than streets, sidewalks, parks, and designated public forums, most public property (including a court building and its grounds) is considered to be a limited public forum or a nonpublic forum. The government can regulate speech in such a forum to reserve the forum for its intended use. Regulations will be upheld as long as they are (i) viewpoint neutral, and (ii) reasonably related to a legitimate government purpose. Here, the statute prohibited public gatherings on the steps of the courthouse at specified times while the court was in session, which appears to be a reasonable, viewpoint neutral effort to preserve government property for its intended use. The citizen would have the burden of proving that there was no reasonable basis for the statute. (A) and (C) are incorrect because the strict scrutiny standard enunciated in those choices applies only to content-based restrictions, and here the statute was not content-based. (B) is incorrect because it states the test for restrictions on speech in public forums. Unlike sidewalks and parks, a courthouse building and grounds are not a public forum even if they are open to the public during specified times.

Question 18

Legislation permitting states to completely ban the sale of cigarettes and other tobacco products was passed by Congress and upheld by the United States Supreme Court. Following the lead of other states, a state legislature declined to enact a complete ban on tobacco products. However, it passed a compromise measure that banned all ads for cigarettes and tobacco products by any print or broadcast media located in the state. A state tobacco distributor that wished to advertise in local newspapers brings an action in federal court to challenge the state statute.

How is the court likely to rule?

A The statute is unconstitutional, because by choosing not to exercise its right to impose a complete ban on the sale of tobacco products, the state can no longer claim that the regulation of advertising serves a substantial government interest.

B The statute is unconstitutional, because the right to ban all truthful advertising for a product is not automatically justified by the right to ban the sale of a product entirely.

C The statute is constitutional, because the state’s power to ban advertising for a product is implicit in its power to ban the product altogether.

D the statute is constitutional, because the ban on advertising constitutes a restriction on commercial speech that is rationally related to the legitimate state interest in reducing the use of tobacco products.

Answer 18

B

The court will probably find the statute unconstitutional as an improper restriction of commercial speech. If the speech regulated concerns a lawful activity and is not misleading or fraudulent, the regulation will be valid if it (i) serves a substantial government interest, (ii) directly advances the interest, and (iii) is narrowly tailored to serve the substantial interest. While this test does not require that the least restrictive means be used, there must be a reasonable fit between the legislation’s end and the means chosen. The greater the restriction on speech, the less likely it will be deemed to be reasonable. A complete ban on truthful advertising of a lawful product is very unlikely to be upheld because such a restriction is not narrowly tailored. [See 44 Liquormart, Inc. v. Rhode Island (1996)] Hence, the complete ban on advertising of tobacco products probably will be an unconstitutional infringement on freedom of speech. (A) is incorrect because the state’s decision not to ban the sale of tobacco products does not preclude it from asserting a substantial interest in discouraging the sale or use of the products; regulations restricting advertising of the products clearly serve a substantial interest, satisfying the first prong of the test. (C) is incorrect because regulation of speech is more likely to violate the First Amendment than regulation of conduct. Here, while the state’s power to ban tobacco products would not raise First Amendment issues, the ban on advertising for a product does, and the constitutional requirements for regulations of commercial speech must be satisfied. Had the state chosen to make sale of tobacco products illegal, it could have banned advertising of the products, but since it chose not to make their sale illegal, any restrictions on advertising for the products have to satisfy the test described above. (D) is incorrect because the standard for testing the validity of commercial speech regulations is more stringent than the “rational basis” test. As stated above, the regulation must be narrowly tailored to directly advance a substantial government interest.

Question 19

A city ordinance provided that anyone who wanted to speak in a public park must have a permit to do so issued by the city. The ordinance granted the mayor discretion to issue or deny such permits based on the mayor’s judgment of whether the speech would be “in the public interest.” The mayor has never denied a permit to anybody desiring to speak on a political topic. A city resident who was unhappy with the city government went to a public park in the city square. There, he made a 10-minute speech accusing the mayor and the city council of gross incompetence and urging voters to “throw the rascals out” at the next election. The city resident had not applied for a permit. After the resident completed his oration, the police arrested him and charged him with violating the permit ordinance.

Would a conviction of the resident be constitutional?

A Yes, because the resident did not have a permit to speak, and a municipality has the right to regulate the time, place, and manner of speech.

B Yes, because the mayor would have issued the permit, because the resident’s speech was on a political topic.

C No, because the ordinance is void on its face.

D No, but only if the resident could prove that the mayor would not have issued him a permit to speak.

Answer 19

C

A conviction of the resident would not be constitutional because the ordinance is void on its face. Although a municipality can place reasonable time, place, and manner restrictions on certain aspects of speech, it may not adopt a regulation that gives officials broad discretion over speech issues. If a statute gives licensing officials unbridled discretion, it is void on its face, and speakers need not even apply for a permit. They may exercise their First Amendment rights even if they could have been denied a permit under a valid law, and they may not be punished for violating the licensing statute. Here, the law allows the mayor to grant or deny permits based on his assessment of public interest. This is too much discretion to be valid. Therefore, the ordinance is void. (A) is wrong because, as explained above, the ordinance was void on its face and thus need not be obeyed. Therefore, the resident did not need to apply for the permit. Also, although it is true that the municipality has a right to reasonable restrictions, this ordinance is not reasonable because it gives too much discretion to the mayor. (B) is wrong because even if the mayor has not abused his discretion, the ordinance is void on its face and thus need not be obeyed. (D) is wrong because, as stated above, the resident’s case does not depend on whether the mayor would grant or deny the permit.

Question 20

A plaintiff brought an action in federal court against a state government, seeking monetary damages. The state moved to have the case dismissed for lack of jurisdiction, citing the Eleventh Amendment of the United States Constitution.

Which of the following facts would support a denial of the state’s motion?

A The plaintiff is a private citizen of the defendant state.

B The plaintiff is a Native American tribe.

C The plaintiff is a neighboring state.

D The plaintiff is a foreign government.

Answer 20

C

The state’s motion should be denied if the plaintiff is a neighboring state. The Eleventh Amendment does not bar actions by one state government against another state government. (A) is incorrect. As a general rule, under the Eleventh Amendment, a federal court may not hear a private party’s or a foreign government’s claims against a state government. A private state citizen is a private party. As such, the Eleventh Amendment generally bars a private citizen from suing a state government in federal court. (B) is incorrect because the Supreme Court has held that, for Eleventh Amendment purposes, a Native American tribe is treated as a private party, and so it is barred from bringing an action against a state government in federal court. (D) is incorrect because the Eleventh Amendment bars actions brought by a foreign government against a state government.

Question 21

A state’s legislature passed a statute that required every used car sold in the state to be tested prior to sale to determine whether it was in compliance with a set of strict exhaust emission standards that were also included in the legislation. Used cars would have to be brought up to standard and pass the emissions test prior to sale. Certain persons in the state object to the legislation because one of its results will be to raise the average price of used cars in the state. Only cars to be sold for junk are exempt from the statute.

Among the following, who would be most likely to have standing to raise a constitutional challenge to the legislation?

A A state resident who was thinking about selling used cars in the state.

B A state resident who was thinking about buying a used car in the state.

C An out-of-state dealer of used cars who had a contract to sell cars to a large dealer in the state.

D An out-of-state manufacturer who might be required to indemnify its dealers in the state for costs arising from the statute.

Answer 21

C

An out-of-state dealer of used cars would be most likely to have standing. Standing requires a personal stake in the outcome of the controversy that includes both a concrete and particularized injury. Abstract injury is not enough; the plaintiff must show that he has sustained or is immediately in danger of sustaining some direct injury as the result of the challenged official conduct, not an injury that is conjectural or hypothetical. Here, the potential plaintiffs in (A) and (B) are merely thinking about selling or buying used cars in the state. Thus, any injury or threat of injury to them is strictly hypothetical and abstract. Consequently, the potential plaintiffs in (A) and (B) are unlikely to have standing. Likewise, the out-of-state manufacturer in (D), who might be required to indemnify its dealers in the state, is at this point able to assert merely a hypothetical injury, not one that is real and immediate. On the other hand, the potential plaintiff in (C), who already has a contract to sell used cars to a state dealer, is immediately in danger of sustaining a direct economic injury as a result of the statute—i.e., costs associated with testing each car and bringing up to standard those cars found to be deficient.

Question 22

A state statute was struck down by the supreme court of the state on the grounds that it was in conflict with the Supremacy Clause of the United States Constitution as well as the Equal Protection Clause of the state constitution.

Does the United States Supreme Court have jurisdiction to hear an appeal of the state supreme court’s decision?

A Yes, because the Supreme Court has original jurisdiction of all cases in which a state is a party.

B Yes, because the requirements for an appeal to the United States Supreme Court are met under the facts.

C No, because the requirements of certiorari are not met under the facts.

D No, because of the “adequate and independent state ground” theory.

Answer 22

D

The Supreme Court probably would not review the state decision because of the “adequate and independent state ground” theory. The Supreme Court will hear a case from a state court only if the state court judgment turned on federal grounds. Here, the judgment is, in part, based on a violation of the Equal Protection Clause of the state constitution, which is an adequate and independent state ground on which the decision would rest even if the federal issue were resolved (assuming that the state court’s disposition of the state constitutional issue did not depend on federal doctrines). (A) is wrong because this is a question of appellate jurisdiction, not original jurisdiction. (B) is wrong because this type of case would not meet the very narrow requirements of appeal. (C) is wrong because if it were not for the adequate and independent state ground, this type of challenge could be heard by the Court in its discretion.

Question 23

An accountant employed by the Federal Communications Commission was offended by various jokes and cartoons that employees would post in the office cafeteria. The Commission did not have any rules regarding what employees could post in the cafeteria, and none of the cartoons were pornographic or harassing. Nevertheless, the accountant lodged a number of complaints with his supervisor that went unheeded. Finally, the accountant posted his own notice chastising the hypocrisy and immorality of the agency for allowing such cartoons when it was charged with ensuring a standard of decency on the public airwaves. The notice prompted a great deal of debate among employees and a great deal of displeasure on the part of the accountant’s supervisor, particularly after it was posted on another employee’s blog and received some media attention. A labor contract between the agency and the clerical workers’ union contained a policy for providing for termination of union employees only for certain specified grounds, but the accountant was not a member of the union and was not covered by the policy or any other employment agreement.

Which of the following statements is most accurate regarding the agency’s right to dismiss the accountant?

A The accountant has a liberty interest in the exercise of his First Amendment rights that entitles him to a hearing to contest the grounds of his dismissal.

B
The accountant has a property interest as a public employee that precludes him from being fired without notice and an opportunity to respond.

C The accountant has no right to a hearing because his statements were not an expression of views on public issues.

D The accountant has both a liberty interest and a property interest that entitles him to a pretermination evidentiary hearing.

Answer 23

A

If the accountant is fired, he has a right to a hearing to determine whether his First Amendment rights were violated by his dismissal. Under the Due Process Clause of the Fifth Amendment, a person has a liberty interest in the exercise of specific rights provided by the Constitution, including freedom of speech. A government employee may not be fired for expressing his views regarding public issues, but can be fired for speech that disrupts the employer’s policies or undermines the employer’s authority. Under the Court’s expansive interpretation of what a public issue is in this context [see Rankin v. McPherson (1987)], the accountant’s statement would probably qualify. At the very least, he can make enough of a showing that his termination violates his free speech rights to be entitled to a hearing on the issue under procedural due process principles. [See Givhan v. Western Line Consolidated School District (1979)] (B) is wrong because the accountant does not appear to have a property interest in his job. A public employee who is subject to removal only for “cause” has a property interest in his job and must be given notice of the charges against him that are to be the basis for his job termination, and a pretermination opportunity to respond to those charges. Here, however, the accountant did not have a property interest in his job. He could have been dismissed for no reason at all. He was not covered by the labor contract between the agency and its clerical workers, and there appears to be no other basis for him to claim an entitlement to continued employment. (C) is wrong because the accountant is entitled to a hearing as long as he can raise a prima facie claim that his speech, which was regarding an issue important to the perception of his agency, was on a public issue and therefore protected by the First Amendment. (D) is wrong for two reasons: As discussed above, the accountant does not have a property interest in his job. Also, due process does not necessarily entitle him to a pretermination evidentiary hearing; a post-termination evidentiary hearing is probably sufficient. [See Cleveland Board of Education v. Loudermill (1985)]

Question 24

To combat rising insurance rates, a state formed a state-owned insurance company that operated exclusively within the state. The company provided insurance on the basis of premiums calculated according to a schedule of fees. Under the schedule, premiums for residents of a particular city were 25% higher than the premiums for any other municipality in the state. Forty percent of that city’s residents were of Mexican descent compared with a state-wide Mexican-American population of approximately 15%. A Mexican-American citizen living in the city brings suit, alleging that the state insurance company’s rate structure violates the Equal Protection Clause.

Will the citizen’s suit prevail?

A Yes, because the higher rates have the effect of discriminating against the Mexican-American population.

B Yes, unless the state insurance company shows a compelling reason for the discrimination.

C No, unless the citizen shows that Mexican-American citizens pay higher rates than similarly situated non-Mexican-American citizens of that city.

D No, because discriminatory economic regulations are not a suspect classification.

Answer 24

C

The state insurance company will prevail unless the citizen can show that the company charges Mexican-American citizens higher rates than other citizens of that city who are similarly situated. The mere fact that legislation or governmental action has a discriminatory effect is not sufficient to trigger strict scrutiny. There must be intent to discriminate on the part of the government, which can be shown by the discriminatory application of a law or regulation that appears neutral on its face. If the state insurance company is charging the city’s Mexican-American citizens higher rates than citizens who are otherwise situated the same, the court will find that there is an intent to discriminate in the rate-setting process, triggering strict scrutiny because a suspect class is involved. (A) is incorrect because, as stated above, the citizens must show more than a discriminatory effect to prevail. The classification will be subject to strict scrutiny only if an intent to discriminate is established, which can be shown by (i) facial discrimination, (ii) discriminatory application, or (iii) discriminatory motive. (B) is incorrect. If the strict scrutiny standard applied, proof of a compelling interest would be required to uphold the discriminatory classification. However, as discussed, strict scrutiny will be triggered only if an intent to discriminate is shown; a discriminatory effect is not sufficient. (D) is incorrect because government actions or regulations that improperly discriminate against a suspect class may violate equal protection even if they are “economic” in nature.a

Question 25

Congress enacted a statute requiring state-supported institutions of higher education that provide federal student loan funds to their students to fund women’s sports according to a complex formula intended to fairly support woman’s athletics and remedy past funding discrimination. Under the formula, a particular state military school will be required to allocate 25% of its athletic budget to its female athletics programs even though only 10% of the school population is female. A male student whose athletic program will be discontinued because of the budget allocation filed suit in federal court challenging the federal statute on various constitutional grounds.

Is the court likely to find that the statute is constitutional?

A No, because the government will be unable to prove that the discriminatory funding requirements required by the statute are necessary to achieve a compelling government interest.

B No, because the federal government does not have the power to dictate the budget allocations of state-supported educational institutions.

C Yes, because remedying past discrimination is a legitimate government interest, and the student will be unable to prove that the statute’s funding requirements are not
rationally related to that interest.

D Yes, because the government will be able to prove that the statute’s funding requirements are substantially related to an important government interest.

Answer 25

D

The statute will likely be held constitutional because the attempt to compensate for past discrimination against women is substantially related to an important government objective. When examining federal government action involving classifications of persons, the Supreme Court, using the Due Process Clause of the Fifth Amendment, applies the same standards that it applies to state actions under the Fourteenth Amendment Equal Protection Clause. When analyzing government action based on gender classifications, the Court will apply an intermediate standard and strike the action unless the government proves, by an exceedingly persuasive justification, that the action is substantially related to an important government interest. Applying this standard, the Court has generally upheld classifications benefiting women that are designed to remedy past discrimination against women, because remedying past gender discrimination is an important government interest. Here, the federal statute establishes a formula designed not only to ensure current “gender equity” in funding of intercollegiate athletic programs but also to correct specific past inequities, and the school’s required funding allocation in favor of women is designed to correct inequitable allocations by the school in prior years. Hence, even though the statute’s allocation requirement may discriminate against the student and other males at the school, the government can satisfy its burden of showing a substantial relationship to an important government interest. (A) is incorrect because classifications based on gender are subject to an intermediate standard rather than a strict scrutiny standard; in other words, the government need not show that the classification is necessary to achieve a compelling interest, only that it is substantially related to an important interest. Furthermore, if the classification were one subject to strict scrutiny, remedying past discrimination based on the classification would probably be considered a compelling government interest. (B) is incorrect because Congress may “regulate” states through the spending power by imposing conditions on the grant of money to state governments. Even if Congress lacked the power to directly regulate the activity that is the subject of the spending program, attaching conditions on the spending does not violate the states’ Tenth Amendment rights as long as the conditions are (i) clearly stated, (ii) related to the purpose of the program, and (iii) not unduly coercive. (C) is incorrect because it imposes the burden of proof on the wrong party and relies on the wrong standard. Because the statute results in gender discrimination, the government has the burden of proof, and that burden is to prove that the statute is substantially related to an important government interest.a

Question 26

A state provided for a public school system based primarily on property tax revenues from the various districts. School districts that had a property tax base below a certain threshold received supplemental funds from the state that were derived from state lottery revenues. The school districts receiving the supplemental funds served a predominantly Hispanic population as compared to the school districts funded only from property tax revenues.

To help balance its budget this year, the state legislature passed a statute terminating the supplemental funds program and earmarking the lottery revenues for deficit reduction. A group of parents of Hispanic schoolchildren in one of the school districts formerly receiving supplemental funds filed suit in federal court, alleging that the state’s action in terminating the funding violates the Equal Protection Clause of the Fourteenth Amendment.

Which of the following best describes the appropriate standard by which the court should review the constitutionality of the state action?

A Because the state statute results in discrimination against a suspect class, the state will have to demonstrate that the statute is necessary to vindicate a compelling state interest.

B Because the right to education burdened by the statute is not a fundamental right, the parents will have to demonstrate that the statute is not substantially related to an important state interest.

C Because no suspect class or fundamental right is improperly burdened in this case, the parents will have to demonstrate that the statute is not rationally related to any legitimate state interest.

D Because the state statute is not discriminatory in intent, the state will have to demonstrate only that the statute is rationally related to a legitimate state interest.

Answer Discussion - Correct

Answer 26

C

To prevail, the parents will have to show that the statute does not meet the rational basis test. Under that test, a law is presumed to be valid and will be upheld unless the challenger can make the difficult showing that it is not rationally related to a legitimate state interest. Here, the statute terminating the funds did not target a suspect class and did not burden a fundamental right, so the rational basis test applies. (A) is incorrect because it is not enough to show that legislation has a discriminatory effect on a suspect class; there must be an intent to discriminate. To establish a racial, national origin, or ethnicity classification, the party challenging the law must show that (i) the racial classification appears in the law itself (facial discrimination), (ii) the law was applied in a purposefully discriminatory manner, or (iii) the law was enacted or maintained for a discriminatory purpose. None of these situations appears to be indicated under these facts. (B) is incorrect because it states the wrong standard. As that choice indicates, the Supreme Court has not held education to be a fundamental right under the Due Process Clause, nor has it found classifications based on wealth to require strict scrutiny. Hence, the test that is applied is the rational basis standard; the standard in (B) is an intermediate scrutiny test applied to gender and legitimacy classifications. (D) is incorrect because it imposes the burden of proof on the wrong party. For a statute that does not discriminate against a suspect class, the plaintiff bears the burden of proving that the statute is not rationally related to a legitimate state interest.