CONSTITUTIONAL LAW - MEE NCBE Exam Rules

Question 1

ISSUE: Is the ordinance a content-based regulation of speech or a content-neutral regulation of speech? Explain.

Answer 1

A law is content-based if it “applies to particular speech because of the topic discussed or the idea or message expressed.”

Reed stated that any ordinance which is content-based on its face is subject to strict scrutiny irrespective of the “innocent motives” of the regulation. Reed could be read to support the argument that any distinction or exemption in a law, HOWEVER small, based on content means that the statute is content-based and THUS subject to strict scrutiny.

Alternatively, an argument can be made to distinguish Reed. Reed might be distinguished on the ground that the City ordinance imposes a scheme banning a well-defined category of highly visually distracting electronic signs, with one narrow exception for time and temperature displays. Three justices in concurrence opined that this type of general “manner” prohibition (albeit without the exception in this question) should not be treated as content-based.

IN ADDITION, the ordinance’s narrow exception for time and temperature signs comports with older cases that are still good law. In City of Ladue v. Gilleo, the Court suggested that exceptions to a general sign regulation that are justified on non-content-related grounds do not trigger strict scrutiny. And in Members of City Council of Los Angeles v. Taxpayers for Vincent, the Court applied intermediate scrutiny to uphold a municipal ordinance against posting signs on public structures, finding the ordinance content-neutral notwithstanding an exception for historic landmark signs.

Question 2

ISSUE: Assuming that the city ordinance is content-based, is it constitutional? Explain.

Answer 2

If the ordinance is deemed “content-based,” it will likely fail strict scrutiny. The city’s would have the burden to show that the ordinance is narrowly tailored (necessary) to further a compelling government interest.

Here, the legislative record shows that the ordinance is justified to promote “traffic safety.” The Court has not yet embraced “traffic safety” as a compelling governmental interest but has only assumed it to be so.

More importantly, the Court tolerates little under-inclusiveness or over-inclusiveness when applying strict scrutiny.

Here, __________________

Question 3

ISSUE: Assuming that the ordinance is content-neutral, is it constitutional? Explain.

Answer 3

If the ordinance is content neutral, then the Court’s time, place, and manner test will be applied. Under that test, a speech regulation is constitutional if the government is promoting a substantial government interest and the regulation is narrowly tailored to achieve that interest and leaves open ample alternative channels of communication.

Here, _______________

The Court has held that both “aesthetic preservation” and “traffic safety” are “substantial government interests” under the time, place, and manner test. The narrow tailoring element requires additional discussion.

Here, _______________

The Court clarified the scope of the “narrowly tailored” element for time, place, and manner analysis in Ward v. Rock Against Racism:

The requirement of narrow tailoring is satisfied “so long as the regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.”

To be sure, this standard does not mean that a time, place, or manner regulation may burden substantially more speech than is necessary to FURTHER the government’s legitimate interests. Government may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals. So long as the means chosen are not substantially broader than necessary to achieve the government’s interest, HOWEVER, the regulation will not be invalid simply BECAUSE a court concludes that the government’s interest could be adequately served by some less-speech-restrictive alternative. “The validity of time, place, or manner regulations does not turn on a judge’s agreement with the responsible decisionmaker concerning the most appropriate method for promoting significant government interests” or the degree to which those interests should be promoted.

Here, _______________

Last, the ordinance likely allows ample alternative means for communicating a speaker’s message. In City of Ladue, the Court addressed an ordinance that prohibited all residential yard signs except “‘residence identification’ signs, ‘for sale’ signs, and signs warning of safety hazards.” There, the Court noted that residential yard signs were a venerable mode of communication, and that a blanket ban on that mode did not leave open adequate alternative channels for homeowners to cheaply and effectively communicate.

[NOTE: The strict scrutiny test and the intermediate scrutiny test define the phrase “narrowly tailored” differently, and so graders should ensure that an examinee applies the proper definition of the term for each test.

Under the strict scrutiny test, “narrowly tailored” means that the challenged law is the least speech-restrictive means for achieving the government’s interest, and very little over- or under-inclusiveness is allowed. This version of “narrowly tailored” is very difficult for the government to satisfy.

Under the intermediate scrutiny test, “narrowly tailored” merely means that the challenged law would achieve the government’s interests less effectively if it were less over- or under-inclusive, and the Court defers to the government’s judgment on this issue. This version of “narrowly tailored” is easier for the government to satisfy.

An examinee’s answer should properly define and describe the legal significance of these two definitions of “narrowly tailored.”]

Question 4

STATE ACTION

Answer 4

The issue is whether there is state action that triggers [the individual’s] constitutional protections.

Generally, the Constitution protects against wrongful conduct by the government, not private parties. Thus, state action is required to trigger an individual’s constitutional protections. However, state action may exist in cases of private parties when: (1) a private person carries on activities that are traditionally performed exclusively by the state; or (2) there are sufficient mutual contacts between the conduct of a private party and the government.

Here, ______________ [Discuss whether the government or a private party is infringing on the plaintiff’s constitutional rights. Absent either exception, if the wrongdoer is a private party – the plaintiff’s constitutional protections are not triggered.].

Therefore, state action [is/is not present], and [the individual’s] constitutional rights are triggered.

[*If the government passes a law that treats a group of people differently from others – consider equal protection]

Question 5

EQUAL PROTECTION

Answer 5

The issue is whether the [government’s law] is constitutional.

The Equal Protection Clause of the 14th Amendment prohibits the government from denying citizens equal protection of the laws. When the government makes laws that classify people into groups, the constitutionality of the law will be evaluated according to the type of classification made.

[*If the classification is suspect]

SUSPECT CLASSIFICATION

A classification is suspect if it is based on race, ethnicity, national origin, or alienage (alienage is only suspect if the classification is made by state law). If a suspect classification is involved, the strict scrutiny standard applies so long as there is intent on the part of the government to discriminate. A discriminatory effect or disparate impact toward a group of people alone is insufficient to show governmental intent. Generally, governmental intent to discriminate can be shown by: (1) a law that is discriminatory on its face; (2) a discriminatory application of a facially neutral law; or (3) a discriminatory motive behind a facially neutral law.

Here, [Identify that the government’s law classifies people into a group based on race, ethnicity, national origin, or alienage.]. In addition, [Discuss whether there was intent on the part of the government to discriminate.].

[*If there was governmental intent to discriminate]

Since a suspect classification is involved and there was governmental intent to discriminate, the strict scrutiny standard applies. Under the strict scrutiny standard, the government must prove that the

regulation is the least restrictive means to achieve a compelling government interest. Here, [Discuss whether the government has met their burden to prove that the regulation is the least restrictive means to achieve a compelling government interest. Note that this is an extremely difficult burden for the government to prove – the challenger will likely win.].

[*If there was NOT governmental intent to discriminate]

While a suspect classification is involved, there was no governmental intent to discriminate. Therefore, the rational basis standard applies. Under the rational basis standard, the challenger must prove that the regulation is not rationally related to any legitimate government interest. Here, [Discuss whether the challenger has met their burden to prove that the regulation is not rationally related to any legitimate government interest. Note that this is an extremely difficult burden for the challenger to prove – the government will likely win.].

[*If the classification is quasi-suspect]

QUASI-SUSPECT CLASSIFICATION

A classification is quasi-suspect if it is based on gender or legitimacy (non-marital children). If a quasi-suspect classification is involved, the intermediate scrutiny standard applies so long as there is intent on the part of the government to discriminate. A discriminatory effect or disparate impact toward a group of people alone is insufficient to show governmental intent. Generally, governmental intent to discriminate can be shown by: (1) a law that is discriminatory on its face; (2) a discriminatory application of a facially neutral law; or (3) a discriminatory motive behind a facially neutral law.

Here, In addition, [Identify that the government’s law classifies people into a group based on gender or legitimacy.].
[Discuss whether there was intent on the part of the government to discriminate.]

[*If there was governmental intent to discriminate]

Since a quasi-suspect classification is involved and there was governmental intent to discriminate, the intermediate scrutiny standard applies. Under intermediate scrutiny, the government must show that the classification is substantially related to an important government interest. Here, [Discuss whether the government has met their burden to prove that the classification is substantially related to an important government interest.].

[*If there was NOT governmental intent to discriminate]

While a quasi-suspect classification is involved, there was no governmental intent to discriminate. Therefore, the rational basis standard applies. Under the rational basis standard, the challenger must prove that the regulation is not rationally related to any legitimate government interest. Here, [Discuss whether the challenger has met their burden to prove that the regulation is not rationally related to any legitimate government interest. Note that this is an extremely difficult burden for the challenger to prove – the government will likely win.].

[*If the classification is NOT suspect or quasi-suspect]

NON-SUSPECT CLASSIFICATION

A classification is suspect if it is based on race, ethnicity, national origin, or alienage (alienage is only suspect if the classification is made by state law). A classification is quasi-suspect if it is based on gender or legitimacy

(non-marital children). For all other classifications, the rational basis standard applies. Under rational basis, the challenger must prove that the regulation is not rationally related to any legitimate government interest.

Here, __________ [Identify that the government’s law classifies people into a group that is not based on race, ethnicity, national origin, alienage, gender or legitimacy.]. Since the government’s classification is neither suspect or quasi-suspect, the rational basis standard applies. Under the rational basis standard, [Discuss whether the challenger has met their burden to prove that the regulation is not rationally related to any legitimate government interest. Note that this is an extremely difficult burden for the challenger to prove – the government will likely win.].

Question 6

1st Amendment Free Speech

Answer 6

The issue is whether the [government’s regulation of speech] is constitutional.

[*If the regulation of speech is targeting what is being said]

CONTENT-BASED REGULATIONS

It is presumptively unconstitutional to place burdens on speech because of its content, except for certain categories of unprotected speech. Content-based regulations on protected speech are subject to strict scrutiny. Under the strict scrutiny standard, the government must prove that the regulation is the least restrictive means to achieve a compelling government interest.

Here, [Discuss whether the government’s regulation of speech is content-based. If it is, and the speech does not fall under a category of unprotected (see below), it is presumptively unconstitutional and subject to strict scrutiny.].

[*If the regulation of speech is content-based, but targeting a category of unprotected speech]

Unprotected Speech

To be constitutional, restrictions on the content of speech must be necessary to achieve a compelling government interest. The government has a compelling interest in the following categories of speech, which are deemed “unprotected speech” under the 1st Amendment: (1) inciting imminent lawless action; (2) true threats and fighting words; (3) obscenity; (4) defamatory speech; and (5) some commercial speech.

Inciting Imminent Lawless Action

Speech can be restricted if it creates a clear and present danger of imminent lawless action. It must be shown that that: (1) imminent illegal conduct is likely; and (2) the speaker intended to cause it.

Here, [Discuss whether the regulation is targeting speech that incites imminent lawless action. If so, the regulation is likely constitutional.].

True Threats and Fighting Words

Speech can be restricted it constitutes a true threat or fighting words so long as the regulation is not designed to punish only certain viewpoints. Fighting words are personally abusive words that are likely to incite immediate physical retaliation in an average person (words that are

merely insulting or annoying are not enough).

Here, [Discuss whether the regulation is targeting true threats or fighting words and whether the regulation is viewpoint neutral. If both are satisfied, the regulation is likely constitutional.].

Obscenity: Miller Test

Speech can be restricted if it constitutes obscenity. Speech constitutes obscenity if it describes or depicts sexual conduct that, taken as a whole, by the average person: (1) appeals to the prurient interest in sex, using a community standard; (2) is patently offensive; and (3) lacks serious literary, artistic, political, or scientific value, using a national reasonable person standard.

Here, [Discuss whether the regulation is targeting speech that constitutes obscenity. If so, the regulation is likely constitutional.].

Commercial Speech

Generally, commercial speech is afforded 1st Amendment protection if it is truthful. However, commercial speech that proposes unlawful activity or that is false, misleading, or fraudulent may be restricted as unprotected speech. Any other regulation of commercial speech will be upheld only if it: (1) serves a substantial government interest; (2) directly advances that interest; and (3) is narrowly tailored to serve that interest.

[*If the regulation of commercial speech is targeting wrongful speech]

Here, [Identify that the regulation is targeting commercial speech that proposes unlawful activity or that is false, misleading, or fraudulent. In this case, the regulation is likely constitutional.].

[*If the regulation of commercial speech is NOT targeting wrongful speech]

Here, [Identify that the regulation is not targeting commercial speech that proposes unlawful activity or that is false, misleading, or fraudulent.]. Therefore, [Discuss whether all three elements are satisfied. If so, the regulation is constitutional.].

[*If the regulation of speech is targeting how, when, or where it is being said]

CONTENT-NUETRAL REGULATIONS

Content-neutral regulations are viewpoint and subject matter neutral regulations that usually regulate the conduct associated with the speech rather than the content of the speech itself. Generally, content-neutral speech regulations are subject to intermediate scrutiny, meaning that they must: (1) advance an important government interests unrelated to the suppression of speech; and (2) not burden substantially more speech than necessary to further those interests.

Time, Place, and Manner Restrictions

The government can regulate conduct related to speech with content-neutral time, place, and manner restrictions. However, the breadth of this power depends on whether the forum involved is a public forum, a designated public forum, a limited public forum, or a nonpublic forum.

[*If the forum involved is a public forum or a designated public forum]

Public Forums and Designated Public Forums

Public property that has historically been open to speech-related activity is called a public forum (e.g., streets, sidewalks, and public parks). Public property that has not historically been open to speech-related activities, but which the government has made open for such activities on a permanent or limited basis, by practice or policy is called a designated public forum.

Here, [Explain why the forum is a public forum or a designated public forum.]. Since the forum involved is a [public forum/designated public forum], the government may regulate speech with reasonable time, place, and manner regulations that: (1) are content-neutral; (2) are narrowly tailored to serve an important government interest; and (3) leave open alternative channels of communication.

Here, [Discuss whether all three elements are satisfied. If so, the regulation of speech is constitutional.].

[*If the forum involved is a limited public forum or a nonpublic forum]

Limited Public Forums and Nonpublic Forums

Government property that has not historically been linked with speech and assembly but has been opened for specific speech activity is called a limited public forum. Government property that has not historically been linked with speech and assembly and has not been opened for specific speech activity is called a nonpublic forum.

Here, [Explain why the forum is a limited public forum or a nonpublic forum.]. Since the forum involved is a [limited public forum/nonpublic forum], the government may regulate speech if the regulations are (1) viewpoint neutral; and (2) reasonably related to a legitimate government purpose.

Here, [Discuss whether both elements are satisfied. If so, the regulation of speech is constitutional.].

Question 7

ISSUE: Do the municipality’s actions with respect to Parcel 1 constitute a taking under the Constitution? Explain.

Answer 7

While the typical taking occurs when the government acts to condemn property in the exercise of its power of eminent domain, the entire doctrine of inverse condemnation is predicated on the proposition that a taking may occur without such formal proceedings. The Supreme Court has not developed a precise formula for determining when the government regulation of the use of private land becomes a taking.

Its somewhat vague guiding principle announced in 1922 remains more or less the guiding principle today: “The general rule at least is that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.” Pennsylvania Coal suggested that regulation has gone “too far” “when it reaches a certain magnitude.” Subsequent case law has not afforded clarity about when regulation has gone “too far” and THUS constitutes a taking.

The Supreme Court FIRST developed, but more recently has abandoned, a disjunctive two-part test: “The application of a general zoning law to particular property effects a taking if the ordinance does not substantially advance legitimate state interests or denies an owner economically viable use of his land.” The FIRST part of this test was expressly abrogated in Lingle v. Chevron U.S.A. Inc., which “held that the ‘substantially advances’ formula is not a valid takings test” and “has NO proper place in our takings jurisprudence.”

The Lingle Court divided regulatory, non-physical takings into three categories: (1) a “total regulatory taking” (i.e., regulations that completely deprive an owner of “all economically beneficial use” of her property as described in Lucas v. South Carolina Coastal Council, (2) “a Penn Central taking” (for which courts will consider several factors such as the economic impact of the regulation on the claimant, the extent to which the regulation has interfered with distinct investment-backed expectations, and whether it amounts to a physical invasion or instead merely affects property interests through some public program adjusting the benefits and burdens of economic life to promote the common good), and (3) a “land-use exaction” (more specifically, a government demand that a landowner dedicate an easement allowing public access to her property as a condition of obtaining a development permit) evaluated under the standards of Nollan v. California Coastal Comm’n and Dolan v. City of Tigard.

Question 8

ISSUE: Do the municipality’s actions with respect to Parcel 2 constitute a taking under the Constitution? Explain.

Answer 8

In Loretto v. Teleprompter Manhattan CATV Corp., the Supreme Court held that a “permanent physical occupation authorized by government is a taking without regard to the public interests that it may serve.” The running of power lines across Parcel 2 and the construction on Parcel 2 of towers supporting those lines constitute such a permanent physical occupation. The public interest in enabling the distribution of electrical power does not interfere with that conclusion.

Here, _____________

Question 9

ISSUE: Assuming that the municipality offers to pay just compensation to Carrie, may the municipality seize Parcel 3 under the takings clause of the Fifth Amendment as incorporated by the Fourteenth Amendment? Explain.

Answer 9

The Fifth Amendment to the Constitution, as applied to the states by operation of the Fourteenth Amendment, guarantees that private property not be taken for a public use without just compensation.

1. Government Action
   Protects from government “taking” of private property. Includes taking land and also regulatory takings by rezoning, prohibiting development, etc.
2. Private Property
   Usually involves land or other real property. Can be other property such as contract and patent rights or trade secrets
3. Public Use
   Must be rationally related to a conceivable public purpose. Includes health, safety, economic development, etc.

a. Physical Taking
Government physically takes or occupies the land

b. Regulatory Taking
A law has the effect of decreasing the value of the property

1) Total Taking—the regulation leaves no economically viable use of the property
2) Partial Taking—the regulation affects some economic use of the land, but there is still some economic use available
a) Economic impact—how much value was lost due to the regulation;
b) Reasonable expectations—the owner’s reasonable expectation of return on investment; and
c) Character of the regulation—does the regulation impact a few owners or the entire community?

As noted by the Supreme Court, a taking that constitutes a “purely private” taking “would serve NO legitimate purpose of government and would THUS be void.” The Fifth Amendment’s guarantee that private property shall not be taken for a public use without just compensation was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.

Although a state action “that takes property from A and gives it to B” was once understood to be an excess of governmental authority, this is NO longer so. The Supreme Court now holds that “a State may transfer property from one private party to another if future use by the public is the purpose of the taking.” As the Court has put it, “We CANNOT say that public ownership is the sole method of promoting the public purposes of community redevelopment projects.” Characterizing the municipality’s action as transferring ownership from one private entity to another THEREFORE does not foreclose a finding of public use.

Question 10

ISSUE: Would the FIRST Amendment preclude liability if Star sued News for libel on the ground that the news story falsely stated that she was having an affair with Lex? Explain.

Answer 10

In New York Times v. Sullivan, the United States Supreme Court held that public officials seeking to recover damages in a defamation action (libel or slander) must prove that the defendant reporter acted with “actual malice,” defined as “knowledge that the published defamation was false” or “reckless disregard of whether it was false or not.” Proof of negligent falsehood is insufficient to permit liability for defamation.
The Supreme Court has extended this standard to public figures who assume “roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, under the Gertz test, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved.”

Question 11

ISSUE: Would the FIRST Amendment preclude liability if the hotel sued Scoop for trespass? Explain.

Answer 11

The FIRST Amendment does not shield the press from liability arising under generally applicable law not aimed at suppression of free speech. In Cohen v. Cowles Media Co., the United States Supreme Court stated that “generally applicable laws do not offend the FIRST Amendment simply BECAUSE their enforcement against the press has incidental effects on its ability to gather and report the news. Enforcement of such general laws against the press is not subject to stricter scrutiny than would be applied to enforcement against other persons or organizations.”

Question 12

ISSUE: Would the FIRST Amendment preclude liability if Lex sued News for invasion of privacy, claiming that the publication of the news story and photograph disclosed the truthful but highly offensive fact that he had engaged in an extramarital affair? Explain.

Answer 12

In a series of cases, the United States Supreme Court has held that where a media defendant has lawfully obtained a private fact, such as the identity of a rape victim, the FIRST Amendment shields the media from liability as long as the news story involves a matter of public concern.

In some jurisdictions, the FIRST Amendment protection is incorporated directly into the tort rule, and the disclosure of private facts is not tortious if the facts are “of legitimate concern to the public.”

Question 13

ISSUE: Did the son’s expulsion from the school violate the FIRST Amendment as applied through the Fourteenth Amendment? Explain.

Answer 13

The individual rights protections of the Constitution apply only where there is “state action” – either direct action by the government or some action by a private party that is fairly attributable to the government.

As a general rule, the actions of a private company like AutoCo or of a private school like the school operated by AutoCo would not constitute state action, and the protections of the Constitution (IN THIS CASE the FIRST Amendment) would not apply.

HOWEVER, there are situations in which the actions of a private actor are attributed to the state. One such situation is when the private actor undertakes a public function. There are not many bright-line rules in the Supreme Court’s state action doctrine, but one of them is this: Where a private actor undertakes a “public function,” the Constitution applies to those actions. Where a corporation operates a privately owned “company town” that provides essential services typically provided by a state actor, the public function doctrine applies and the Constitution binds agents of the town as if they were agents of the government.

Here, ______________

Thus, ________________

As explained in Point One, the FIRST Amendment applies to the school as a state actor. Although children in public schools (and in schools subject to the FIRST Amendment like the Oakwood school) have some FIRST Amendment rights, Tinker v. Des Moines Independent Community School District, schools have greater leeway to regulate the speech of students and teachers than the state would have outside the school context. HOWEVER, the Supreme Court has long held that public schools may not force their students to participate in a flag salute ceremony when it offends the political or religious beliefs of the students or their families. FOR EXAMPLE, in prior cases, the Supreme Court has invalidated a mandatory public school flag salute ceremony and invalidated compelled expression of political belief on state-issued license plates.

In this case, ____________

Question 14

ISSUE: Did the father’s arrest violate the FIRST Amendment as applied through the Fourteenth Amendment? Explain.

Answer 14

As explained in Point One, AutoCo is treated as a state actor. THUS, Oakwood’s commercial district is treated as government-owned property for purposes of the FIRST Amendment. THUS, the leafleting here is subject to the FIRST Amendment BECAUSE it is an expressive activity. When expression takes place on government-owned property, government regulation of the expression is assessed under the public forum doctrine. Public streets and sidewalks have long been held to be the classic example of a “traditional public forum” open to the public for expression.

BECAUSE the father was distributing leaflets while standing on a street corner in the commercial district, his expressive activity occurred in a traditional public forum.
When a state tries to regulate expressive activity in a traditional public forum, it is prohibited from doing so based on the expressive activity’s content UNLESS its regulation is narrowly tailored to achieve a compelling governmental interest (“strict scrutiny”).

Here, __________________

When a state tries to regulate expressive activity without regard to its content, intermediate scrutiny applies. Under intermediate scrutiny, the true purpose of the regulation may not be the suppression of ideas (if so, then strict scrutiny applies), the regulation must be narrowly tailored to achieve a significant governmental interest, and it must leave open ample alternative channels for expressive activity.

[NOTE: Some examinees might argue that this is a “time, place, and manner” restriction, and that AutoCo might have greater latitude to regulate the public sidewalks under this theory. This argument is incorrect for two reasons. FIRST, the Supreme Court has held that the power to regulate speakers through littering laws is very limited, for the reasons given and in the cases cited above. But more generally, a “time, place, and manner” restriction involves the shifting of speech from one time and place to another or to another manner; HERE, there is NO shifting, but a direct punishment for expressive activity (albeit one couched in content-neutral terms). IN ADDITION, some examinees might read the ordinance to be, in effect, a total ban on leafleting, since most leafleting will produce some litter. Those examinees might note that the Court has required total bans on an entire mode of expression to satisfy strict scrutiny and analyze the father’s prosecution HERE ACCORDINGLY. The Supreme Court has held that additional restrictions such as an absolute prohibition on a particular type of expression will be upheld only if narrowly drawn to accomplish a compelling governmental interest.]

Question 15

ISSUE: Preclude Homestead’s enforcement of its anti-leafleting ordinance against Chapter? Explain.

Answer 15

The FIRST Amendment, as applied to the states and local governments through incorporation in the Fourteenth Amendment, protects the rights to free speech, free exercise of religion and prevention of the government’s establishment of religion. All three require some government or state action in order to apply.

Anti-Leafleting Ordinance

Freedom of speech is a fundamental right. THEREFORE, there are significant limitations on what the government may do to inhibit that right. Regulations on speech in traditional public forums must be reasonable time, place and manner restrictions.

Traditional public forums include, public parks, public streets and public sidewalks. In order to be reasonable, time, place and manner restrictions in a public forum must be content neutral, leave adequate alternatives for speech, and must be narrowly tailored to meet a compelling state interest.

Here, ______________.

FIRST, to be reasonable it must be determined if the regulation is content neutral. A regulation is content neutral so long as it does not target a particular idea or message. Here, ______________.

SECOND, the regulation must provide for ample alternatives for the speech. Here, _____________.

LASTLY, the ordinance must be narrowly tailored to meet a compelling state interest. BECAUSE of the fundamental right to speech, this is a strict scrutiny test. The government has the burden to prove this element. Here, __________. Thus, __________.

THEREFORE, ___________.

Question 16

ISSUE: Preclude Principal’s denial of Church Club’s request to use classroom space for its meetings? Explain.

Answer 16

Denial of Church Club’s request

Freedom to assemble is a fundamental right. A public school is an entity of the state and THEREFORE is included under the FIRST AMENDMENT as a state action.

A public school, HOWEVER, is not a traditional public forum. Speech regulated in a non-traditional or limited public forum may be limited to a greater extent than a traditional public forum. HOWEVER, rooms where the school has designated for group meetings, i.e., speech, are limited or designated public forums. In these forums, the government may limit the speech to the subject matter and type that is appropriate for the forum so long as the restrictions are viewpoint neutral and narrowly tailored to meet a substantial state interest.

HERE,______________.The school has a strong interest in assuring the use of its classrooms is not disruptive to the learning environment of the school and the limitation to after school groups is narrowly tailored to meet that interest.

HOWEVER, the application of the rule must be viewpoint neutral as well. The Principal, as an employee of the school, is a state actor.

HERE ________________. THEREFORE, it is not viewpoint neutral BECAUSE it is targeting the religious views of the group as a reason for denying the group the use of the space for its meeting.

THEREFORE, the actions of the principal are in violation of the FIRST Amendment. IN SUM, his belief that allowing the use would be violation of the Establishment Clause is wrong.

Question 17

ISSUE: Provide grounds to vacate Father’s trespass conviction? Explain.

Answer 17

Father’s Trespass Conviction

The ____________ have any constitutional grounds for overturning his conviction.

The Principal’s rule that no one is allowed into his office without an appointment is constitutional. As stated in the above analysis, a school is a non-public forum. As such, reasonable restrictions which relate to the function of the forum are constitutional.

HERE, the Principal has restricted who may enter his office. The office is a place of business activity and it is a significant interest for the school to prohibit the entrance and speech of people who do not have appointments. This restriction is THEREFORE narrowly tailored to the interest of conducting official school business and not disrupting the learning objective of a school.

THEREFORE, this regulation is constitutional and the Father was trespassing when he entered the office. His conviction will be upheld.

Question 18

ISSUE: Assuming that Anti-Tax’s statements fall within the scope of the Sedition Statute, what constitutional arguments can be made against convicting him for violating the statute? Explain.

Answer 18

The Supreme Court of the United States has held that the FIRST Amendment precludes the conviction of individuals who incite or advocate breaking the law UNLESS (1) there is advocacy of illegal conduct and not just an abstract expression of ideas, (2) the advocacy calls for imminent lawbreaking, and (3) the lawbreaking is likely to occur. MOREOVER, a person CANNOT be convicted on the basis of a statute that does not distinguish between abstract expression of ideas and such advocacy.

Question 19

ISSUE: Assuming that Anti-Tax’s statements fall within the scope of the Sedition Statute, what constitutional arguments can be made against convicting him for violating the statute? Explain.

Answer 19

In Chaplinsky v. New Hampshire, the Supreme Court excluded from the protection of the FIRST Amendment so-called “fighting words,” i.e., words “which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Fighting words are unprotected speech BECAUSE they play little or NO part in the exposition of ideas.

Speech does not come within the fighting-words doctrine UNLESS it is likely to cause a violent reaction from others. FOR EXAMPLE, wearing of a jacket reading “F*ck the Draft” in a courthouse does not constitute fighting words BECAUSE it is not likely to cause a violent reaction from others under the circumstances. HERE, it is possible, but not certain, that the state can establish that Anti-Tax’s statement urging viewers to “make Tax pay up,” etc., was likely to cause a violent reaction.

HOWEVER, even if the state establishes a likelihood of a violent reaction, Anti-Tax may not be convicted under the Abusive Words Statute BECAUSE of its overbreadth. In Gooding v. Wilson, the Court held that a man who told a police officer “I’ll kill you” and “I’ll choke you to death” could not be punished for uttering what were clearly fighting words BECAUSE the statute under which conviction was sought was overbroad and unconstitutional on its face.

Here, ____________. Thus, _________.

Question 20

ISSUE: Is Section 11 of the Federal Drug Abuse Prevention Act a constitutional exercise of federal power? Explain.

Answer 20

The central issue raised by the statute described in this question (the “Federal Drug Abuse Prevention Act”) is whether its provisions violate fundamental principles of federalism.

Under the system of dual sovereignty established by the Constitution, the States retain a significant measure of sovereign authority. The Tenth Amendment confirms that the powers of the federal government are subject, in some cases, to limits necessary to protect “state sovereignty” from federal intrusion. One of those limits is that Congress may not “require the States to govern according to Congress’ instructions.”

FOR EXAMPLE, a federal law that commandeers the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program is unconstitutional.

In Printz v. United States, the Supreme Court held that “commandeering” of State officials was also unconstitutional under the federalism principle emanating from the Tenth Amendment. In Printz, Congress ordered state law enforcement officials to conduct background checks of persons purchasing firearms. By legislating to force the law enforcement officers to take certain actions “in their official capacities as state officers,” the Court said, Congress was acting to control their actions “as agents of the State.” Such an effort by the federal government “to direct the functioning of the state executive, and HENCE to compromise the structural framework of dual sovereignty” is unconstitutional. The Court held definitively that “the Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.”

HERE, Section 11 of the Federal Drug Abuse Prevention Act violates federalism principles. The law requires a State A law enforcement officer or agency to undertake investigations aimed at detecting violations of federal drug laws and to report to federal authorities on suspected violations. It seeks to compel state officers to participate in the enforcement of the federal laws against the use of marijuana and THUS unconstitutionally intrudes upon state sovereign authority.

Question 21

ISSUE: Is Section 15 of the Federal Drug Abuse Prevention Act a constitutional exercise of federal power? Explain.

Answer 21

Section 15 of the Federal Drug Abuse Prevention Act seeks to implement the federal anti- marijuana policy by denying funding from the Justice Assistance Grant program to states that do not criminalize use of marijuana. Congress may use a threat to withhold federal money to induce a state to exercise its sovereign authority (e.g., by passing certain laws) to achieve congressional goals. The Supreme Court has repeatedly held that such threats are constitutional exercises of Congress’s power to spend money for the “general welfare of the United States” UNLESS they are unduly coercive.

In South Dakota v. Dole, the Court held that Congress may condition the states’ receipt or use of federal funds on state compliance with “federal statutory and administrative directives.” When using its spending power in this way, Congress must satisfy certain requirements. FIRST, the spending must be for the general welfare, although a “court should defer substantially to the judgment of Congress” in this regard. SECOND, the condition imposed by Congress must be imposed unambiguously. THIRD, the condition imposed must be related “to the federal interest in particular national projects or programs.” Fourth, the condition imposed must not “be used to induce the States to engage in activities that would themselves be unconstitutional.” FINALLY, a condition will be deemed improper if it is “so coercive as to pass the point at which ‘pressure turns into compulsion.’” FOR EXAMPLE, conditioning continued receipt of Medicaid funds on compliance with new requirements is unconstitutional economic dragooning that leaves the States with NO real option but to acquiesce, BECAUSE the threatened funding constituted over 10% of the State budgets.

HERE, _____________ of the Act is probably constitutional. FIRST, both the federal spending program and the imposed condition are in pursuit of the general welfare. The Supreme Court has said that Congress’s view of “the general welfare” deserves substantial deference, and there is NO reason to believe that a court would SECOND-guess Congress’s judgment that the general welfare is served by assisting with the funding of state law enforcement agencies in states that criminalize the use of drugs that Congress considers dangerous.

The other three basic requirements are also satisfied. The condition being imposed on states that receive funding from this particular program is unambiguous. The condition also relates generally to the purpose of the federal funding, which is evidently to support and improve state and local law enforcement.

FINALLY, a requirement that the states criminalize the use of certain drugs does not induce any state to engage in unconstitutional activity.
The threat of a loss of Justice Assistance Grant funds is probably not so coercive as to amount to an unconstitutional intrusion on State A’s sovereignty. The amount of money involved IN THIS CASE ($10 million) is only a small fraction (less than 2%) of State A’s law enforcement budget and THUS likely a far smaller part of its total state budget. This is utterly unlike the substantial economic loss (typically 10% of the entire state budget) that faced the states in Sebelius, where the Court concluded that the states had “NO real option” other than to follow federal wishes. Rather, this is much closer to the “relatively mild encouragement” that was upheld in South Dakota v. Dole (requiring South Dakota to raise the drinking age to 21 years or lose highway funding amounting to less than half of one percent of the state’s total budget). In short, although the funding condition acts as an incentive for State A to adhere to federal policy, it does not “indirectly coerce” the State “to adopt a federal regulatory system as its own.” It

THEREFORE is a proper exercise of Congress’s spending power and does not run afoul of constitutional principles of federalism.

Question 22

ISSUE: Under the Fifth Amendment as applied to the states through the Fourteenth Amendment, is the city ordinance requiring the restaurant to install floodlights an unconstitutional taking? Explain.

Answer 22

Under the 5th amendment as applied to the states through the 14th amendment, the government cannot take your property without just compensation. There are two ways which a taking might occur. Either the government takes all or a portion of your land for the government to use via regulation or statute (a regulatory taking), or the government deprives a property owner of all economic value of his property which in effect is also a taking.

HERE, this would potentially fall under a regulatory taking. A taking could occur no matter how small the amount of land taken or commandeered for the government’s use. In one case, even a small cable line was enough.

ALOS HERE, the government is not actually taking a part of the restaurant’s land or directly installing something on the owner’s land. It is only requiring downtown businesses to install floodlights on their own premises. A state or city may make regulations that would be in the interest of public health or safety under its police power. They are valid as long as the regulation is rationally related to a legitimate state interest. The burden would be on the challenger to show there is no conceivable basis for the state or city to make such a regulation, which is a tough burden to meet.

HERE there was no regulatory taking and THUS no violation of the takings clause. This was merely a regulation by the city under its police power to protect public health and safety.

HERE the purpose would be to increase safety and attract more foot traffic to the area after dark. This would be both beneficial to the city and to the businesses in the area and wouldn’t be unduly costly to the businesses.

As a result, the restaurant does not have a valid claim HERE.

Question 23

ISSUE: Under the Fifth Amendment as applied to the states through the Fourteenth Amendment, is the city’s requirement that the restaurant grant the city an easement as a condition for obtaining the building permit an unconstitutional taking? Explain.

Answer 23

An exaction is a requirement to add or do something to private property in order to get a permit to build or add on to that property from the city (e.g., Quid pro quo). An exaction will not be an unconstitutional taking if it has a legitimate purpose based on a public health or safety interest and the exaction is reasonable to alleviate a public health or safety concern which would be caused by the reason for the permit.

HERE the city is requiring the restaurant to grant an easement so the city can place surveillance cameras. This is not an unconstitutional taking. The city is not asking for a large portion of the property, only for a small easement to place some surveillance cameras. The purpose for placing the cameras would be to have surveillance of nearby streets and parking lots.

Additionally, the restaurant is wanting to expand its capacity so as to be able to accommodate all of its patrons at peak times. There is a legitimate public safety concern by the city that the increase in traffic might also attract more crime to the neighborhood. Placing surveillance cameras might help alleviate such a problem caused by increased traffic.

THEREFORE, the city has a legitimate purpose for wanting the easement over the restaurant’s property. The easement and placement of the surveillance equipment would be a reasonable way to alleviate any increased crime caused by the expansion to the restaurant, which was the purpose for which the restaurant was seeking the permit.

THEREFORE, the requirement of an easement in exchange for the building permit is not an unconstitutional taking on the part of the city.

Question 24

ISSUE: Is the Act a valid exercise of Congress’s power to regulate interstate commerce? Explain.

Answer 24

The commerce power of the US Constitution is wide ranging and broad. Congress can regulate the instrumentalities of commerce such as roads and waterways. Moreover, Congress can regulate activities that are purely intrastate that, if the aggregate impact were totaled, would impact commerce. To regulate under the commerce power, Congress has to have a rational basis in that the activity to be regulated has an impact on commerce.

HERE, the Committee reports note that the total interstate commerce loss is $5 - $10 billion.

HOWEVER, the Court has also said that when there is no connection between commerce and what the government is trying to regulate, this will be outside commerce’s reach. This came from a case in about 1995 in which Congress used its commerce power to regulate guns in school zones. There, the Court found that there was no connection, or an insufficient connection between commerce and the subject being regulated.

HERE, workplace violence will meet the test of being related to Commerce. In this situation, workplace violence is directly causing financial harm in huge sums. This is not attenuated and not related as it was in the 1995 case.

THUS, in this situation, this is a valid exercise of the Commerce power.

Question 25

ISSUE: Assuming that the Act is a valid exercise of Congress’s power, may the Act constitutionally be applied to state agencies as employers? Explain.

Answer 25

Congress’ power to legislate under the commerce power is broad. Up until about 1986, Congress did not have the ability to regulate state agencies as employees under the commerce clause; HOWEVER, San Antonio v. Garcia, a federal labor law case, changed that. In that case, the Supreme Court held that the commerce power enabled the federal government to apply certain wage and hour regulations on a state.

HERE, this is precisely what has happened. If it is a valid exercise of the commerce power, Congress has been held to have the authority, as indicated by the US Supreme Court, to allow its regulations to apply to a state. The regulation applied to the state agency.

HOWEVER, in doing so, Congress cannot commandeer a state agency and force it to carry out federal programs. Printz. MOREOVER, Congress cannot force states to enact certain laws. While it can resort to economic coercion by using its taxing and spending power to entice, as Justice Connor said in South Dakota v. Dole, it cannot tell the state what to enact.

HERE, the facts do not support that the federal government is forcing the state to enact any laws, just to enact programs within their state agencies.

Ultimately, BECAUSE Congress has stepped out of its bounds by commandeering and forcing a state agency to enforce and carry out its law, this will not be constitutionally applied to state agencies.

Question 26

ISSUE: Does the Eleventh Amendment bar the employee’s lawsuit in federal court against the state agency? Explain.

Answer 26

The 11th Amendment of the US Constitution prohibits a state from being sued in federal court by its citizens, unless it consents. It does not, HOWEVER, bar a suit against the state in state court. In certain circumstances Congress can abrogate a state’s 11th Amendment power and allow for suits against it to take place in Federal court.

HOWEVER, the instances in which this is allowed, flow from Section 5 of the 14th Amendment. This section was enacted after the Civil War and gives Congress the power, generally when enforcing 14th Amendment rights such as equal protection and due process to abrogate a state’s 11 Amendment immunity, commonly called sovereign immunity.

HERE, in this situation, the law is being passed by the commerce clause. It is not being used to enforce due process or equal protection acts. Rather, it is being done as a purely economic issue: workplace violence is negatively impacting commerce. The law clearly states that it abrogates the states’ rights to be free from suit in federal court by a private citizen without consenting. This violates the 11th Amendment as it abrogates sovereign immunity without the proper method in doing it.

Question 27

ISSUES: Can the bank maintain a suit in federal court against State A for damages? Explain.

Answer 27

The issue is whether this action is permitted under the 11th amendment.

The 11th Amendment prohibits federal law suits against states. It is based in the premise of state sovereign immunity. There are exceptions to the 11th amendment, for example, when a state waives sovereign immunity or 11th amendment protection or when congress, under its 14th Amendment sec 5 power abrogates the state sovereign immunity in a statute. Otherwise, citizens of the state or of other states are not permitted to sue a state directly for damages.

HERE, the bank appears to be suing the state directly, along with the superintendent, seeking damages. There is no indication that the statute provides a waiver of the 11th amendment and there is no congressional statute on point, so there is not congressional abrogation.

THEREFORE, the suit is not permitted under the 11th amendment and the bank cannot maintain the suit against the state itself in federal court.

FURTHERMORE while state officials can be sued in their individual capacities for damages, and in their official capacities for prospective injunctive relief, even if that relief would require some money from the state treasury, they cannot be sued for money damages or retrospective relief.

THEREFORE, the bank’s action for damages, even as against the superintendent will not be permitted in federal court.

Question 28

ISSUES: Can the bank maintain a suit in federal court against the state Superintendent of Banking to enjoin her from enforcing the State A statute? Explain.

Answer 28

The main issue is whether against a state official in their official capacity seeking injunctive relief can be maintained in federal court given the 11th amendment.

As mentioned above, despite the 11th amendment, state officials can be used in their individual capacities for damages, and in their official capacities for prospective injunctive relief, even if that relief would require some money from the state treasury. A suit against a state officer for injunctive relief will be maintained if it is seeking prospective relief and the effect on the state officers is incidental.

HERE, the bank’s action for injunctive relief can be maintained against the superintendent. The superintendent is sued in her official capacity and the bank is seeking to stop (enjoin) the enforcement of the statute.

THEREFORE it can be maintained under an Ex Parte Young theory. Note that the bank clearly has standing SINCE it has already suffered a concrete and particularized injury (loss of $2 million dollars) that is caused by the statute and would be redressed by a favorable finding (that the statute is unconstitutional). It can likely show that it will continue to lose money from lost business as a result of the statute, which would be redressed by an injunction.

IN CONCLUSION, this part of the bank’s claim can proceed.

Question 29

ISSUES: Is the State A statute unconstitutional? Explain.

Answer 29

The main issue is whether the statute violates the dormant commerce clause.

The commerce clause grants to congress the right to regulate interstate commerce. While states have a general police power to regulate in the interest of the health, safety and welfare of their citizens, the negative implication of the commerce clause, often called the dormant commerce clause, limits what they can do when it places a burden on interstate commerce.

Generally, if a state law discriminates against out-of-staters, or against interstate commerce, it will be struck down UNLESS the state can show it is necessary to protect a substantial state interests (unrelated to protectionism). It is does not discriminate, it will be struck down if it places an undue burden on interstate commerce-in other words, the burden on interstate commerce will be weighed against the interest of the state.

HERE, while there is some protectionism motivating the statute (it was passed as a result of heavy lobbying by State A based manufacturer of biometric identification equipment), it does not appear to discriminate against out of state companies. It applies to both in state and out of state companies and to companies doing business only within the state, and to those doing business across states.

THEREFORE, it likely does not discriminate. THEREFORE it will be subject to the balancing test.

HERE, the burden on interstate commerce appears to be somewhat substantial. Banks that operate in multiple states including State A, will be forced to choose between updating their systems to have biometric identification, or cease to do that kind of business in the state. That could have a substantial impact on interstate commerce. The fact that the large bank has already made this choice is support of that. On the other hand, the state appears to have a strong interest in protecting its citizens against fraud. Despite the security measures of banks, customers are still being subjected to unauthorized transfers by thieves. To the extent that this is impacting its citizens, State A clearly has a strong interest in protecting them.

HOWEVER, it is not clear that this particular biometric approach is an improvement or will work. Experts disagree about whether it is significantly better and the bank clearly thinks it is not. HOWEVER, given that the state has a strong interest, it likely will pass the balancing test and be upheld.

There are two exceptions, neither applicable here: the market participant exception and congressional authorization. There is no indication in the facts that either apply HERE. FURTHERMORE, there is no preemption SINCE congress has not regulated in this area.

Note that the privileges and immunities clause of Art IV does not apply BECAUSE the bank is not an individual citizen, and BECAUSE the statute, while possibly motivated by protectionism, does not appear to discriminate against out-of-staters.

Question 30

ISSUE: Which provisions, if any, of the Green Energy Act unconstitutionally burden or discriminate against interstate commerce? Explain.

Answer 30

In order to determine which provisions of the Act unconstitutionally burden or discriminate against interstate commerce, let us look at each provision individually.

The FIRST provision requires half of the energy in the state to come from environmentally friendly energy sources. This provision is valid in the sense that the state is not facially discriminating against out of state companies in this provision. SINCE there is no preemption from Congress in this scenario, the state is allowed to require its own utility companies to produce 50% of the electricity sold in the state from environmentally friendly sources. The fact that the state produces wind energy, which is classified as enviro friendly, and not natural gas, which is not enviro friendly, is not dispositive of an intent to discriminate against out of state energy producers. The state is allowed to specifically classify natural gas as not enviro friendly, in the sense that states are allowed to enact more stringent environmental protection regulations than the federal government has instituted, if they see fit. Also, the state is still allowing the utilities to produce electricity from these non-friendly sources, they are just putting a cap on the amount they can produce from these sources, which does not close the marketplace. Also, the state has provided a legitimate interest in discriminating against natural gas plants, in that they have been found to divert scarce water resources, which the state has a strong interest in protecting.

The SECOND provision prohibits the Public Service Commission from approving any new coal-burning plants, unless there is a finding that the construction is necessary to meet urgent energy needs of the state.

HERE, we see that the statute is being challenged as applied, by a utility in State B, seeking to build a coal-plant in State A to provide for an energy shortage in State B. Again, the general rule is that states may enact more stringent pollution requirements than the federal government, and this potentially falls under that allowance, if the restriction is sought to reduce air emissions from the coal-plants. A court may find,
HOWEVER, that this is an invalid restraint on interstate commerce, in that State B has shown an extreme energy shortage.

Generally, states may not discriminate against out of state actors, unless the state is acting as a market participant. HERE, the state is not a market participant, and THUS cannot discriminate against the State B plant. Further, states are generally restricted in how they can restrict a neighboring state’s important duties, including removing nuclear waste, and providing energy resources.

The THIRD provision requires State A to buy, when possible, goods and services only form enviro friendly vendors located within the state. HERE, the state refuses to buy from an out of state vendor who meets the requirements under the provision as enviro friendly. The state is acting as a market participant in this scenario, SINCE they are buying goods and services from vendors, and SINCE there is a “state as a market participant exception” to rules against states discriminating against out of state actors, the state may validly refuse to purchase from this particular vendor, especially SINCE there are several similar vendors within the state meeting the requirements.

Question 31

ISSUE: Has Private violated the man’s rights under the Equal Protection Clause of the Fourteenth Amendment? Explain.

Answer 31

The Fourteenth Amendment provides that “NO State shall deny to any person within its jurisdiction the equal protection of the laws.” The U.S. Supreme Court has interpreted this language as applying not only to the states themselves but also to private parties whose actions constitute “state action.”

Simply put, in order for there to be a violation of the Fourteenth Amendment, the allegedly unconstitutional action (HERE, denial of admission based upon gender) must be attributable to the state. Actions of private parties are not typically considered state action, but the actions of otherwise “private” parties can constitute state action in certain exceptional cases. For instance, private parties have been held to be state actors where (1) they have performed a traditional public function, (2) there is the enforcement of certain private contracts, (3) there is joint action or “entanglement” between a state and private actor, or (4) there is state encouragement of private discrimination. A State normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State.

Private is a private entity and none of the factors described above contribute to a conclusion that its actions constitute state action. Running a private school or college is not state action. FIRST, Private is not performing a traditional public function. SECOND, there has been NO judicial enforcement of a private contract HERE. THIRD, it is highly unlikely that a court would hold that mere state regulation of the curriculum and state certification of graduates is sufficient to constitute entanglement. Fourth, there is NO evidence that the state has directly encouraged Private to discriminate on the basis of gender.

Question 32

ISSUE: Has Public violated the man’s rights under the Equal Protection Clause of the Fourteenth Amendment? Explain.

Answer 32

Laws that classify on the basis of gender are typically assessed under heightened scrutiny. Although some early cases suggested that strict scrutiny was the correct standard, modern cases have settled on intermediate scrutiny. United States v. Virginia, the U.S. Supreme Court held that state laws that make classifications on the basis of gender are unconstitutional UNLESS the state can establish an “exceedingly persuasive justification” for the classification. An “exceedingly persuasive justification” is one that serves “important governmental objectives” and which does not rely upon outdated or overbroad generalizations and stereotypes about differences between men and women. The burden of justification is demanding and rests entirely on the state. The state must at least show that the “challenged classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.” These objectives must be real in the sense that they are real state purposes rather than hypothetical justifications for the gender classification.

MOREOVER, gender classifications must be “substantially related” to the achievement of such important governmental objectives. “A State can evoke a compensatory purpose to justify an otherwise discriminatory classification only if members of the gender benefited by the classification actually suffer a disadvantage related to the classification.”
BECAUSE the man has been denied admission to Public solely on the basis of his gender, the action of Public – clearly the action of the state, as Public is the state nursing school – is presumptively unconstitutional. The state interest IN THIS CASE is remedying past discrimination against women – as the letter states, “mindful of the historical discrimination that women have faced in State A, our state has established Public to remedy this discrimination and provide opportunities for women who want to work in the growing field of health care as nurses.” Remedying past discrimination is certainly an important governmental objective; in the contexts of race and gender classifications, the Supreme Court has upheld this governmental objective in the face of heightened scrutiny.

HOWEVER, it is unclear whether this quote from Public’s letter sets forth the actual state purpose. Although there has been gender discrimination in the field of health care in State A in the past, there is NO evidence that there has been discrimination against women in the nursing field. Indeed, the evidence that 95 percent of nurses have historically been women suggests that State A is more likely reinforcing outdated stereotypes of women as nurses (rather than, say, doctors) by restricting Public admissions to women.

FINALLY, if the goal of the admissions policy is to end discrimination against women in the health care field, it is not clear how the admissions policy advances this objective.

In certain cases, a state may treat men and women differently consistent with the equal protection guarantee and provide separate facilities for each gender (FOR EXAMPLE, male and female sports teams, dormitories, and bathroom facilities at state universities).

In such cases, MOREOVER, the state must bear the burden of (1) demonstrating the “exceedingly persuasive justification” for the separate treatment, and (2) demonstrating that the separate facilities are substantially equivalent. THUS, FOR EXAMPLE, in United States v. Virginia, the Supreme Court suggested that the Commonwealth of Virginia could offer all-male and all-female public military-style education consistent with the Equal Protection Clause.

HOWEVER, BECAUSE the new all-female “Leadership Program” in that case provided facilities and career opportunities inferior to those that the Commonwealth was providing in its established all-male program at the Virginia Military Institute, the Court concluded that the separate program violated the Fourteenth Amendment.

IN THIS CASE, BECAUSE the Male Nursing Opportunity Program is markedly inferior to the all-female Public program, it is insufficient to satisfy the Equal Protection Clause. Although graduates of the all-male program are still eligible to become nurses in State A, the two programs are not substantially equivalent. They differ in both overall quality and the employment opportunities they offer to their graduates. The facilities of the Male Nursing Opportunity Program are not as modern as those at Public, the faculty is not as experienced, and graduates of the Male Nursing Opportunity Program do not enjoy the same employment opportunities as graduates of either Public or Private. For these reasons, the Male Nursing Opportunity Program is inferior to the regular all-female Public program, and it CANNOT be offered as a substitute consistent with Equal Protection.

Question 33

ISSUE: Does the Act violate the Equal Protection Clause of the Fourteenth Amendment? Explain.

Answer 33

The applicable constitutional provision is the Equal Protection Clause of the Fourteenth Amendment, which states: “Nor shall any State deny to any person within its jurisdiction the equal protection of the laws.” The allegedly unconstitutional discrimination is age-based discrimination BECAUSE employees like the firefighter CANNOT continue as firefighters once they reach 50 years of age.

The Supreme Court has developed three levels of scrutiny for equal protection claims: strict, intermediate, and the lowest, “rational basis.” The Court has consistently applied rational basis scrutiny to age-based classifications. FOR EXAMPLE, the Supreme Court has upheld a 50-year-old retirement age for state police and applied rational basis review to such age-based classifications.

Under the rational basis test, the issues are whether State A has a “legitimate interest” that is served by the discriminatory classification and whether the means used to achieve this legitimate state interest are “reasonably related” or “rationally related” to that state interest. The Court generally applies this test with substantial deference to legislative judgment.

HERE, the firefighter will likely argue that State A is violating his right to the “equal protection of the laws” by depriving him, and other firefighters, of employment solely BECAUSE they have reached the age of 50. More specifically, he will argue that he and the other firefighters 50 and older are being forced to retire without regard to whether they are capable firefighters, an action not taken against those under the age of 50.
State A will likely argue that lowering the retirement age for firefighters will improve workforce quality, enhance public safety, and reduce expenses. BECAUSE these are “legitimate” state interests, this argument is likely to succeed.

Given the legitimacy of State A’s objectives, the question then becomes whether a mandatory retirement at age 50 is reasonably related to attaining those objectives. Although the firefighter may be a qualified firefighter notwithstanding his age, that is not the relevant question. The question is whether State A has reason to believe that one’s physical fitness and ability to be a firefighter, in general, decline with age. The question specifies that the legislature heard evidence from relevant professionals in support of that position. HENCE, the conclusion that a mandatory retirement age would, in general, improve the fitness of the workforce is reasonable. Under the rational basis test, it is not necessary for the fit between ends and means to be perfect. The fit merely has to be “reasonable” or “rational.”

The fact that State A may have also enacted the statute to save money does not alter this analysis. One legitimate purpose to which the lines drawn by the statute are rationally related is sufficient to uphold a statute under the lenient rational basis test. BECAUSE State A has a legitimate governmental purpose for enacting this statute, and BECAUSE lowering the retirement age is rationally related to the achievement of this purpose, a court is likely to conclude that the Act does not violate the Equal Protection Clause of the Fourteenth Amendment.

Question 34

ISSUE: Would Congress have authority under Section Five of the Fourteenth Amendment to enact a statute barring states from establishing a maximum age for firefighters? Explain.

Answer 34

Congress’s powers are limited to those expressed or implied in the Constitution. To enact a law on a particular topic, Congress must rely on some identified grant of legislative authority in the Constitution. Section Five of the Fourteenth Amendment is one such grant of authority.
While a mandatory retirement age for firefighters does not violate the Equal Protection Clause of the Fourteenth Amendment, “legislation which deters or remedies constitutional violations can fall within the sweep of Congress’s enforcement power even if in the process it prohibits conduct which is not itself unconstitutional.” Congress’s power, HOWEVER, is remedial. It has been given the power “to enforce,” not the power to determine what constitutes a constitutional violation. In drawing “the line between measures that remedy or prevent unconstitutional actions and measures that make a substantive change in the governing law,” the Supreme Court stated that the constitutional question is whether there is a “congruence and proportionality between the constitutional injury to be prevented or remedied and the means adopted to that end.” Lacking such a connection, legislation may become substantive in operation and effect. This proportionality requirement allows Congress to outlaw conduct that courts likely would hold unconstitutional under existing judicial precedent. Congress may also outlaw a broader range of conduct to prevent constitutional violations. But Congress CANNOT rely on its Fourteenth Amendment enforcement power to prohibit a kind of behavior that is unlikely to involve a constitutional violation at all.

BECAUSE age is not a suspect classification under the Equal Protection Clause, states may discriminate on the basis of age without offending the Fourteenth Amendment if the age classification in question is rationally related to a legitimate state interest. The proposed federal statute would prohibit mandatory retirement requirements that courts likely would find constitutional. In 2000, the Supreme Court held that a federal statute generally prohibiting age discrimination by employers (including states) exceeded the power of Congress to legislate pursuant to Section Five of the Fourteenth Amendment. Indeed, Congress’s primary goal HERE would be to outlaw a kind of discrimination that does not violate the Fourteenth Amendment. The Supreme Court clearly held that Congress CANNOT, under its Fourteenth Amendment power, legislate to prohibit constitutional behavior where there is NO constitutional injury to be prevented or remedied.

THEREFORE, a court would likely hold that Congress would not have the power under Section Five of the Fourteenth Amendment to enact a statute barring age requirements for firefighters.

[NOTE: This question does not raise any questions about sovereign immunity under the Eleventh Amendment inasmuch as Congress can abrogate that immunity when it acts pursuant to Section Five of the Fourteenth Amendment. IN ADDITION, this question does not ask whether Congress could pass such a statute under its Commerce Power. ]

Question 35

Equal Protection Clause of the Fourteenth Amendment

Answer 35

The Equal Protection Clause of the Fourteenth Amendment applies only to government action. To trigger constitutional protections, state action is required. A private entity’s conduct must constitute state action in order for these protections to apply. State action may be considered to exist when private parties carry out traditional governmental functions or if there is significant state involvement in the activities.

Here, ________________

To be considered significantly involved, the state must act affirmatively to facilitate, authorize, or encourage the private activity or must have intertwined its actions with those of the private entity to such an extent that the state and the private party mutually benefit from the involvement (e.g., a joint venture). Simply licensing or regulating a private party does not amount to state involvement significant enough to trigger the protections of the Equal Protection Clause of the Fourteenth Amendment.

Question 36

Equal Protection Clause of the Fourteenth Amendment

Answer 36

Public is the state nursing school and its action is therefore state action on its face. Denying the man admission to the State Nursing School based on his gender is presumed to be unconstitutional. Discrimination based on gender is discrimination based on a “quasi-suspect” classification and so is judged under the intermediate scrutiny standard. In applying this test, the burden is on the state to show that its different treatment of the sexes is substantially related to an important government interest and that an “exceedingly persuasive justification” exists for the distinction. The state here will need to show that the exclusion of males from its state nursing school serves an important governmental interest and provide “exceedingly persuasive justification” for excluding male applicants based on their gender.

The State would seem to have a difficult time in providing an “exceedingly persuasive justification” for denying the man admission to its nursing school based on his gender. Public’s letter cites the historical discrimination women had faced in the healthcare field in State A, presumably to show that its exclusion of men is substantially related to the important governmental interest of redressing this historical wrong. However, the facts note that historically 95 percent of State A nurses have been female. Therefore, it is unlikely that excluding men would actually redress the general discrimination against women in the healthcare field. State can thus provide no persuasive justification for its exclusionary admissions policy and has violated the man’s rights under the Equal Protection Clause.

Question 37

Quality of Education Opportunity

Answer 37

Different treatment of the genders by the government (for example separate sports facilities at state universities) does not violate the equal protection guarantee if the state can show that it has an
“exceedingly persuasive justification” for the different treatment and that the separate facilities offered are “substantially equivalent.”

As discussed above, the state is unable to provide exceedingly persuasive justification for the gender-separate nursing schools. Nor is Public able to show that the education offered by the two facilities is substantially equivalent. The two programs differ in that the Male Nursing Opportunity Program is clearly inferior. Its facilities are not as modern as those at Public, the faculty is not as experienced, and graduates of the Program do not have the same employment opportunities as graduates of either in-state nursing schools.

Because Public has not shown substantial equality in the separate educational opportunities, the separate program for males violates the Fourteenth Amendment.