To: Students in Con.

Law III
From: Prof. Obama
Re: The Exam

First, let me apologize for the extreme tardiness in getting this memo to you. Due
to a miscue between me and my secretary in Springfield, I thought it had been faxed to
the registrar and distributed over two months ago.

Second, let me say how generally pleased I was with the quality of this year’s
exams. The questions were tough-but the vast majority of you handled the main issues
well, leaving me to score the exams mostly on the precision and subtlety of your answers.

The memo below gives you a basic idea of the analysis I was looking for in
grading the exams, as well as some of the thoughts that you may have raised and for
which I assigned appropriate credit. This memo isn’t intended to be exhaustive (although
it is obviously far more comprehensive than I would have expected from any exam, given
the time limits you were all working under); there may be issues that some of you
identified that represent sparkling insight and for which you were awarded credit, but
which are not included in this memo.

Each exam should have three grades on the cover. The circled grade is the
“official” grade. The other two grades are by part. These latter grades are basically
provided for your information, but they do not necessarily average out to your final grade,
since the final grade took the curve into consideration.

Part I - The Cloning Ban

Question 1

Dolly’s Claims

One way to approach this question is to first consider whether Futura’s ban on
cloning would violate the constitutional rights of Dolly if she were competent and
decided to reproduce herself through cloning. If the answer is yes, then Futura’s outright
ban would presumably be struck down, and we can move to the narrower question of
whether consent requirements of the sort instituted in those states that permit cloning are
also unconstitutional.

As most of you recognized, whether a decision to clone one’s self is

constitutionally protected from government intrusion largely depends on whether such a
decision falls within the ambit of “fundamental” rights recognized by the Supreme Court

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under the “substantive” prong of the Fourteenth Amendment’s Due Process Clause.
There are several related arguments for the “fundamentalness” of the cloning decision.

First, Dolly might argue that a decision to clone herself involves the right to
procreate, a right the Court first deemed fundamental in Skinner v. Oklahoma. Skinner
involved the selective sterilization of convicts, and hence was decided under the Equal
Protection Clause; by definition, Futura’s outright ban on cloning involves no such
classifications. Nevertheless, both the language of Skinner and a line of subsequent
“right to privacy” cases decided under the Due Process Clause (Griswold, Eisenstadt,
Carey, and Roe) all argue for a broad reading of the right at stake: a right to make
decisions regarding childbearing free from government interference - at least absent a
government showing that such interference is narrowly tailored to serve a compelling
government interest. Moreover, although Griswold appeared to rest its opinion on issues
of marital privacy and the sanctity of the home, Eisenstadt, Carey and Roe clearly
extended the right beyond the boundaries of the home or marital intimacy.

Does cloning fall within this fundamental zone of procreation/privacy? As many

of you discussed, the answer probably depends on the degree to which the Court
embraces or rejects the notion of “tradition” as a mechanism for curtailing the scope of
the “substantive” Due Process Clause. In Michael H., Justice Scalia argued that
constitutionally protected substantive rights under the Due Process Clause must be
defined at their most specific, traditionally recognized level. This is the approach taken
in Bowers v. Hardwick, for example, where the right at issue is described by the Court
not as the right to sexual intimacy between unrelated, consenting adults, but rather as the
right to engage in homosexual sodomy.

As applied to this case, Justice Scalia’s approach might lead to an extremely

narrow description of the right asserted by Dolly. Indeed, Scalia might argue that cloning
does not even qualify as “procreation” under a standard dictionary definition of the term
(for what it’s worth, Webster’s Dictionary defines procreation as “to bring a living thing
into existence by the natural process of reproduction.“) Given the recent vintage of
cloning technology, it would be difficult to argue that a narrowly-defined “right to clone
one’s self’ is “deeply rooted in the Nation’s history and traditions.” Moore. In the
absence of any deeply rooted tradition, Scalia would argue, and in circumstances where
the states exhibit no clear political consensus on the issue, the Court has no business
minting a new “right” or “liberty interest” to protect, but should instead evaluate Futura’s
ban under rational basis review.

Whether a majority of the current Court would in fact embrace such a cramped
reading of the right to privacy/procreate cases is not entirely clear. On the one hand, a
majority of the Court appears to reject Scalia’s approach in Casey. In that case, Justice
O’Connor not only defends an activity that enjoyed a record of protection prior to Roe
that was spotty at best, but also uses relatively expansive language to connect the abortion
right with the contraception cases, indicating that these cases all “involve decisions
concerning not only the meaning of procreation but also human responsibility and respect

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for it.” Indeed, it might be argued that for a majority of the Court, the outcome in
Bowers depended in part on the fact that there was a long-standing tradition of
prohibiting sodomy, and that in the absence of such a specific, traditional prohibition on
cloning, the Court must necessarily rely on general principles - such as individual
autonomy, or reproductive freedom - in evaluating the constitutionality of Futura’s ban.
Dolly might also point out that Bowers emphasizes the absence of any childbearing
interest with respect to sodomy, and that such a childbearing interest (through admittedly
untraditional means) does exist in this case.

On the other hand, the reasoning of the majority opinion in Washington v.

Glucksberg appears to closely track Justice Scalia’s; not only does the Court identify
tradition and “a careful description of the asserted fundamental liberty interest” as the
“guideposts for responsible decision-making” in substantive Due Process cases, but the
majority opinion also explicitly rejects a more fluid approach suggested by Justice Souter,
in which tradition is understood as a “living thing.” Again, Dolly might argue that the
analysis in Glucksberg rested heavily on the strong tradition against assisted suicide, a
tradition that is not present in this case; she might also argue that while Justice O’Connor
provided the fifth vote for the majority opinion in Glucksberg, O’Connor went on to write
a concurring opinion in which she appears to distance herself somewhat from the
tradition-laden language of the four other members of the majority. Still, the Glucksberg
opinion indicates at the very least a deep hesitance on the part of the Court to further
broader the scope of interests protected under the substantive Due Process Clause.

A few of you suggested that a competent Dolly might have more luck couching
her decision to clone solely as an issue of bodily integrity. Irrespective of whether
cloning is or is not “procreation,” the argument runs, there clearly exists a long-standing
tradition, both under the common law and under constitutional interpretation, of
protecting an individual’s choice to reject even life-sustaining medical treatment.
The same concern is evident in the abortion decisions; the state can’t force a Cruzan.
woman to maintain a pregnancy against her wishes. Roe. If the state can’t force a
woman to bear a child or accept life-sustaining treatment, why should it be able to control
her decision to clone absent a compelling (or at least important) government interest?

The problem with such an analysis, of course, is that the Court has never
interpreted the Due Process Clause to protect a person’s right to do whatever he or she
wants with his or her own body. The prohibition on suicide is just one example of a
constraint on bodily autonomy that the Court considers constitutional; other examples
include prohibitions on the ingestion of illicit drugs, prostitution, and the sale of body
parts. A focus on bodily integrity/autonomy does highlight the possibility, however, that
the Court might apply a balancing test of the sort used in Casey and Cruzan. In those
cases, the Court refrained from clearly identifying the decision to have an abortion or to
reject life-sustaining medical treatment as “fundamental,” but did acknowledge such
decisions as “liberty interests” that deserve some constitutional protection. Applied to
our case, a Court might determine that Futura’s outright ban constitutes an “undue

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burden” on Dolly’s decision to replicate, while upholding regulations that severely restrict
the circumstances under which cloning technology might be used.

It is important to recognize, however, that the term “liberty interest” is just as

malleable as the term “fundamental right,” so that the use of a balancing approach by the
Court does not avoid the definitional problems already discussed. For example, the Court
might recognize a broad liberty interest in medically-assisted procreation, but still find
Futura’s ban on cloning to be merely a restriction on one highly specialized technique
among many. Under such an analysis, the fact that cloning might be the only means of
bearing a genetically-related child for a handful of people like Mary and Joseph might
trouble the Court; on the other hand, several of you were correct to point out that in
Casey, Justice O’Connor expressed little concern for the fact that for some women,
waiting periods and other restrictions might constitute an effective ban on abortion, and
not merely an inconvenience incidental to an otherwise available right.

Mary and Joseph’s Claims

Most of the discussion above regarding the appropriate standard of review with
respect to Dolly’s potential claim applies with equal force to any consideration of Mary’s
and Joseph’s potential claims. Again, it’s worth considering first what Mary and
Joseph’s claims might be if not complicated by the fact of Dolly’s incapacity - in
circumstances, say, where Dolly is terminally ill but competent and consents to the
cloning procedure. Under such circumstances, it might be argued that Mary and Joseph’s
claim of a “right to procreate” through cloning is even more persuasive than Dolly’s,
since a) any cloned child would be in fact a product of Mary and Joseph’s genetic
mixture; b) Mary and Joseph might have no other means of bearing a child genetically
related to both of them; and c) the cloned embryo would be implanted in Mary’s womb
and Mary would carry it to term like any traditional pregnancy.

Described in these terms, it would be difficult to differentiate the cloning of Dolly

from the use by other techniques commonly used by infertile couples to conceive - i.e. in
vitro fertilization, the use of donated eggs, and so on. None of these technologies are
“traditional” as that term is commonly understood, and yet it is hard to imagine the Court
sanctioning an outright prohibition on their use without a pretty compelling reason for
doing so. The fact that these new technologies increasingly facilitate post-menopausal
child-bearing raises further doubts that any constitutional analysis of cloning can rest
simply on the “natural” limits of reproductive capacity.

Futura’s Interests - How Compelling?

Depending on how the Court resolves the “fundamentalness” issue, the Court
would evaluate Futura’s justifications of its ban on cloning under either a) strict scrutiny
(in which case the ban would need to qualify as “narrowly tailored” to achieve a
“compelling government interest”); b) rational basis review (in which case the ban would
merely have to be rationally related to achieving an legitimate government interest); or c)

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a more fluid balancing test of the sort employed in Casey and Cruzan. (I should note, by
the way, that the first two of Futura’s asserted rationales for a cloning ban are drawn
almost verbatim from President Clinton’s Commission on Human Cloning, which sought
to explain its recommendation for a moratorium on any attempts to clone humans. The
third rationale summarizes some of the arguments offered by various medical ethicists in
the debate surrounding cloning.) Below we consider each of Futura’s rationales in turn:

1) Preventing psychological damage, etc. As most of you recognized, the weakest

rationale offered by the state appears to be its asserted interest in preventing a class of
clones who may experience “psychological damage, ostracism or even discrimination as a
class.” While the interest in protecting children generally, and cloned children in
particular, is certainly legitimate and probably compelling, the means the state has chosen
can hardly be described as narrowly tailored, and would therefore not support the Futura’s
ban under any form of heightened scrutiny.

To begin with, the hypothetical offers no evidence of cloned children experiencing

a disproportionate amount of psychological damage and social ostracism. But even if
cloned children did experience such problems, the state surely cannot use possible
evidence of societal bigotry against a class of children as a justification for preventing
such children from coming into existence, any more than it can use bigotry to justify
discriminatory child custody policies (Palmore) or discriminatory school assignment
policies (Cooper). To hold otherwise would be to endorse a not-so-subtle theory of
eugenics that might conceivably support state policies to prevent the birth of other groups
who experience psychological difficulties, social ostracism and discrimination - e.g.
minorities and the disabled.

Indeed, it is not clear that this rationale could survive even rationale basis review.
As several of you noted, in Cleburne, the Court reject the state’s use of social ostracism
against the mentally disabled as a justification for discriminatory policies against such
persons, even though it declined to hold that the classifications based on mental disability
constituted a “suspect” classification under the Equal Protection Clause. If the state
wants to prevent discrimination against the cloned, it can pass anti-discrimination laws.

2) Preventing objectification. organ harvesting, etc. The state’s asserted interest

in preventing the objectification of children and the possible abuses that might attend
such objectification is only slightly more persuasive than the “social ostracism” rationale.
Concerns about the “objectification” of children seem to rest on the assumption that
cloned children will be treated differently from children produced in the traditional
fashion, an assumption that is not supported by the evidence. And although the interest in
preventing organ harvesting or other abuses against cloned individuals - including
children -- seems compelling (particularly in light of some of the more far out reports that
have come out since I wrote the exam, regarding the possible creation of headless
clones!), the state has at its disposal a wide range of means (e.g. bans on organ harvesting,
bans on child abuse, etc.) that already prevent commerce in humans or human body parts.

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 Although the “objectification/abuse” rationale would probably not survive strict
scrutiny, and would not appear to justify an outright ban under an “undue burden”
analysis (a range of regulations - from restrictions on who can clone to where cloning can
be performed - could address fears of organ harvesting and other abuses without banning
the procedure entirely), it might be sufficient under rational basis review. The state might
argue, for instance, that the further development and widespread use of cloning
technology will increase the risk of children and fetuses being bred for unsavory
purposes, and make organ harvesting prohibitions more difficult to enforce. An outright
ban might thus be considered rationally related to the state’s goal under the extremely
deferential standards on display in Bower and some of the Equal Protection Cases
decided under rational basis review (e.g. Railway Express Agency).

3) Preserving the sanctity of life/family bonds. This leaves the state with one last
rationale - the notion that cloning violates “the sanctity of life and the bonds of family
that lie at the very core of our ideals and our society.” That a state has a compelling
interest in preserving an actual human life (i.e. preventing murder, suicide, etc.) is clear
from the case law (Cruzan, Glucksberg). This doesn’t necessarily mean, however, that
the state also has a compelling interest in preventing what it considers to be the
“devaluation” of human life that might result from cloning. It might be argued that the
abortion cases lend support to such an abstract “sanctity of life” concept, given that the
Court finds the state’s interest in protecting the “potentiality of human life” to be
compelling, without ever ruling that a fetus is a “person” or resolving the difficult
question of when individual life begins. Roe. Whatever we consider a fetus to be,
however, it is clearly more than an abstract proposition; in any event, it is hard to see how
a compelling interest in protecting potential life translates into a compelling interest in
preventing potential life.

Similar problems arise when we consider the state’s interest in preserving the
bonds of family. In other contexts, the Court has indicated that an individual has
constitutionally protected rights to determine his or her familial relationships (Loving,
Moore, Zabiocki). The Court has also upheld state regulations that seek to preserve
existing family bonds - freely chosen by the individuals involved -- in the face of what a
majority of the Court considered to be the countervailing liberty interest of a biological
father who wants to establish paternity (Michael H.). In none of these cases, however, do*
we find the Court upholding state restrictions on an individual’s fundamental right to bear
children or form a family solely on the basis of the state’s abstract judgment of what a
family should look like. As several of you pointed out, cases like Moore would seem to
lend more support for exactly the opposite proposition - that the state cannot, and should
not, make such judgments, but must instead base restrictions on family life on something
more concrete.

The question, then, boils down to this - can Futura’s moral judgment regarding
the potential harms that cloning will visit on our current conceptions of life and family
serve as a sufficient basis for instituting an outright ban? The answer appears to be yes if
the Court evaluates Futura’s ban under rational basis review -- as many of you pointed

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out, it was just such moral judgments that the Court in Bowers found to be sufficient in
upholding the ban on consensual homosexual sodomy at issue. Whether such moral
justifications are enough to survived heightened review is a closer question. On the one
hand, it might be argued that the moral judgments at issue with respect to cloning are far
more profound than the moral questions involved in consensual sodomy - tinkering with
the basic building blocks of life is obviously discomfiting, as are the possibilities of a
world in which one’s child is one’s genetic twin, scientists claim they are God, and the
very concept of individuality is called into question. On the other hand, to the extent that
the Court is forced to grapple with such weighty issues, it might prefer to do so in the
context of deciding whether cloning is or is not a fundamental right, rather than establish
the troubling precedent that the state’s moral judgments, standing alone, can override an
individual’s fundamental rights or liberty interests.

Question 2

Having examined possible constitutional claims under the best of scenarios - that
is, where Dolly is competent and gives her voluntary and informed consent to be cloned -
we can now turn to the question of how her incapacity affects the analysis.

As a starting point, we can assume that if the Court upholds Futura’s outright ban,
either because cloning is not a fundamental right or because Futura’s asserted interests are
sufficiently compelling to override Dolly’s or her parent’s liberty interest in cloning, then
the Court will determine that less restrictive regulations on cloning - such as the informed
consent requirements imposed by those states that permit cloning - also do not violate
Dolly’s or her parent’s rights under the substantive prong of the Due Process Clause.

This “greater includes the lesser” argument does not insulate, however, the
consent regulations from attack under the Equal Protection Clause. Even if the act of
cloning itself is not a constitutionally protected right, selective restrictions on the activity
might still be subject to some form ofjudicial review. The informed consent requirement
imposes at least one such classifications: it distinguishes between parents of terminally ill
minors, who are permitted to clone their child without the child’s consent, and parents of
terminally ill, comatose adults like Dolly, who must show “clear and convincing” proof
of their child’s consent.

Unfortunately for Mary and Joseph, this particular classification is not considered
“suspect” under the Court’s Equal Protection jurisprudence, and hence would be subject
only to rational basis review. As noted above, such a standard of review provides states
with the widest possible latitude in crafting public policy. Here, the consent requirement
appears to be designed to prevent the possibility that a person will be unwittingly cloned;
such a goal seems entirely legitimate, not merely because of the disturbing psychological
and sociological implications that might arise in a legal regime in which an individual
could be cloned without his or her permission, but also because such a goal comports
with the well-established common law of battery, which forbids the touching of one
person by another without consent or legal justification. Cruzan. And given the long-
standing legal distinction between adults and children with respect to their respective
abilities to grant consent, it would be difficult to argue that the consent rules at issue here
are arbitrary or irrational -- even if the rules fails to take into account those situations in
which adults are unable to provide their consent due to a persistent vegetative state.

Mary and Joseph’s last hope would be to argue that Dolly’s general statements
regarding cloning do in fact constitute informed consent to be cloned, or, in the
alternative, that Dolly’s living will delegates to Mary and Joseph all medical decisions,
including the decision to have Dolly cloned. Like the parents in Cruzan, Mary and
Joseph would go on to argue that the state’s imposition of a “clear and convincing”
evidentiary standard violates Dolly’s right to have her wishes regarding “medical
treatment” (or the delegation of decision-making authority) in the event she fell into a
permanent vegetative state determined accurately and followed faithfully.

Under rational basis review, it’s hard to see how Mary and Joseph could succeed
in this claim. After all, the Court rejected almost exactly the same argument in Cruzan.
It did so despite a willingness to assume that the decision to reject even life-sustaining
medical treatment was “quasi-fundamental,” and despite the fact that it therefore
subjected Missouri’s evidentiary law to heightened scrutiny.

There are at least two differences in the fact pattern involving Dolly that might
distinguish our case from Cruzan. First, Nancy Cruzan did not leave behind a living will
explicitly delegating decisions regarding medical treatment to her parents in the event of
incapacity; Dolly did. Setting aside for a moment the serious interpretive questions
involved in defining “medical treatment” to include cloning, it might be argued that the
right to delegate medical decision-making to a surrogate in the event of incapacity is itself
a fundamental right or liberty interest, separate and apart from the issue of whether the
decision to be cloned is a fundamental right or constitutionally protected liberty interest.
In support of such an argument, one might point to Justice O’Connor’s footnote in
Cruzan, in which she states that the Court has reserved the question of delegation of
decision-making authority. Mary and Joseph obviously wouldn’t be home free under
such an interpretation of precedent - a state might still insist that Dolly’s decision to
delegate authority did not encompass the decision to clone, and that determining her true
wishes must still be made under a “clear and convincing” test - but at least Mary and
Joseph might have a shot.

A second difference between Cruzan and our case involves the nature of the
underlying decision being made. As many of you observed, the Court in both Cruzan and
Glucksburg emphasized the finality of the decision in “right to die” cases, and the parade
of horribles that might result from blurring the line between “natural” death and suicide
or assisted suicide (financial pressures on families, biased “assistance” for the
handicapped, the slippery slope into euthanasia, etc.). As substantial as the psychic harms
from cloning may be, it can be argued that they do not compare in severity to the harms
involved in a hastened death, and hence do not justify an evidentiary rule so strict that it
prevents a pair of loving parents from cloning a child who suffered an untimely death.

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Again, such an argument might not work under rational basis review, but it would be
worth a shot.

Up to this point, our analysis of the consent requirement has assumed that the
Court declined to find the decision to clone to be a fundamental right, or at least a
constitutionally recognized liberty interest. How would our analysis change if it did make
such a finding?

In all likelihood, the arguments available to Mary and Joseph wouldn’t be that
different from those available under rational basis review - particularly if we assume that
even under heightened scrutiny, the Court would not strike down as invalid per se consent
rules designed to prevent individuals from being cloned willy-nilly without their
knowledge or consent. The final outcome might not change, either - for reasons
discussed above, the consent requirement certainly does not appear to be significantly
overbroad. For our purposes, it is sufficient to note that the Court would give Mary and
Joseph’s arguments more attention under heightened scrutiny, and would scrutinize with
more care both the rationale behind the consent requirement and the narrowness with
which the requirement was drawn. Thus, the Court might find a state’s interest in
preventing the unauthorized cloning of individuals by unrelated third parties to be
compelling, but might question whether the state has an equally compelling interest in
preventing Dolly from delegating the authority to clone to her parents. Similarly, the
heightened scrutiny called for under the fundamental rights prong of Equal Protection
analysis might lead the Court to question a rule that prevents Mary and Joseph from
cloning Dolly while permitting parents of terminally ill minors to clone their child.

Part 2 - Ujamaa School

Question 1 - Race Claims

Although there are several ways of approaching this question, I would probably
start by considering whether the Splitsville School Board, in establishing Ujamaa School,
is engaging in either de jure or de facto segregation of students on the basis of race, in
violation of the Equal Protection Clause and Brown v. Board of Education.

In Brown, the Supreme Court held that public school facilities that intentionally
separate students by race are “inherently unequal,” and thus a per se violation of the
Equal Protection Clause. Although the original proponents of Ujamaa called for an “all-
black, all male” school, the fact pattern is ambiguous as to whether the Splitsville School
Board incorporated such explicitly racial language in the actual plan it voted on and
adopted. If so, such race-based language, standing alone, might be sufficient to persuade a
court that de jure segregation is at issue here.

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 Even if such explicit references to an “all-black, all-male” school were omitted
from the final plan approved by the school board, plaintiffs would still have a strong
argument that Ujamaa constitutes a form of de facto segregation. Although the school
board has couched the mission of Ujamaa in race-neutral language (i.e. fostering a spirit
of discipline, academic excellence, etc.), it might be argued that the entire thrust of
Ujamaa - from its “Afrocentric” curriculum to its “Rites of Passage” program to its goal
of recruiting an all-black, all-male teaching staff - caters exclusively to the particular
needs of black male students. In the parlance of Feeney, a plaintiff could argue that
Ujamaa would not have been created “but for” the school boards desire to separate
students on the basis of race. Moreover, a plaintiff could argue that Ujamaa’s voluntary
admissions policy is irrelevant, since the state may not institute “freedom of choice” plans
that it knows will interact with preexisting societal pressures and racial polarization to
steer parents and students inexorably towards segregated schools. Green, Fordice.

As persuasive as this argument might appear at first blush, it is by no means a

slam-dunk; as many of you indicated, the school board would have at its disposal a
number of plausible counter-arguments. To begin with, the school board might argue that
(absent the explicit references to an “all-black” school) the creation of an “African-
centered” immersion school with an “Afrocentric” curriculum does not, by itself, indicate
an intention to segregate students on the basis of race, any more than does the use of more
traditional - and some would say “Eurocentric” - curriculum in other Splitsville schools.
Instead, the school board would say, the Ujamaa program is simply expanding the menu
of choices available to students in the system, in much the same way as various magnet
schools structure their curriculum around Latin studies or Shakespeare.

Correspondingly, the school board could argue that to the extent Ujamaa is
tailored towards the particular needs of inner-city black males, the reason is not because
of any interest in discriminating against other groups, but because black males make up
the cohort of children most likely to underachieve in conventional schools. Setting aside
the issues of gender for the moment (to be considered below), the differences in
performance between black and white children are, under this argument, indisputable -
indeed, it is precisely these differences in performance that justify the wide-spread
practice of “tracking” students within many supposedly integrated schools, a practice that
often results in extreme levels of classroom segregation but has never been ruled to be
unconstitutional.

The school board could also argue that neither Green nor Fordice are applicable to
this case, since both decisions were rendered against the backdrop of active; system-wide
de jure segregation. In its effort to dismantle Jim Crow, the Supreme Court was well
within its remedial power to insist that a school system take active, affirmative steps to
end existing patterns of discrimination and effectuate a “unitary school system;” in such a
context, the Court was also justified in presuming that any “freedom of choice” plan was
instituted to maintain, rather than dismantle, school segregation. In contrast, Ujamaa
defenders might argue, the federal courts have determined that the Splitsvilie school
system is “unitary,” and there is nothing in the fact pattern to indicate that the creation of

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Ujamaa will exacerbate the degree of segregation that currently exists as a result of
housing patterns and white flight. So long as the racially-neutral admissions criteria are
maintained, the school board could argue, the Court has no constitutional basis for
presuming that the choices of some parents and students not to apply to Ujamaa are the
result of invidious intent or action by the school board, any more than the Court had a
constitutional basis for imputing discriminatory motive on the part of a school board that
fails to adjust district lines for purposes of maintaining racial balance in the face of
changing demographics. Spangler.

How might a court sort through these conflicting arguments? In part, it would
depend on how the court interprets the intent requirement first announced in Washington
v. Davis. If “discriminatory intent” means merely the intentional taking of race into
account in designing government programs, then the totality of the evidence with respect
to how Ujamaa came about (i.e. the intent of the two board members who originally
proposed the plan, the racial orientation of the curriculum, etc.) would probably meet
such a standard, irrespective of the facially-neutral manner in which students are selected,
and the facially-neutral ends (improved academic performance) that the racially-oriented
means are ostensibly designed to serve. If, on the other hand, invidious intent speaks to
some form of active animus on the part of state actors towards the group to be
disadvantaged by the its action (as cases like McCleskey seem to suggest), then the school
board can plausibly argue that the intent test is not met.

Indeed, one of the difficult questions facing a court in determining whether the
establishment of Ujamaa constitutes intentional race-based discrimination is the absence
of an obvious victim or group of victims that have suffered discriminatory effect/impact.
Imagine for a moment that the Splitsville school board concedes that it created Ujamaa
specifically to benefit African-American students. The school board might nevertheless
argue that Brown and subsequent desegregation cases have no application to this case,
precisely because no one is harmed. As we touched on above, the board might argue that
Brown and its progeny were primarily concerned with the stigmatic harms that Jim Crow
conveyed, the racial stereotypes and socio-economic subordination that segregation
perpetuated, and the circumstances on which such stereotypes feed. Because the “self-
segregation” at issue in Ujamaa is designed to empower, rather than stigmatize and
subordinate, African-American boys, the school board might argue, the Ujamaa plan is
perfectly consistent with the true spirit of Brown.

Such a “subordination” or “stigmatic harm” approach to Brown obviously has its

adherents. Indeed, a number of Supreme Court justices used a variant on this reading of
Brown to justify the use of intermediate scrutiny in evaluating affirmative action
programs; according to these justices, it is possible to distinguish between “benign” and
“invidious” race-based classifications by examining whether the classification stigmatizes
a minority group and/or reinforces there subordinate status. Bakke, Adarand (Stevens
dissent). Such an reading of Brown might appear particularly compelling in a case like
ours, where a) the school board acted on the suggestion of two black members and with
the apparent support of Splitsville’s black community; b) Ujamaa has no appreciable

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impact on either black or non-black students who choose not to enroll in Ujamaa; c) those
students who are enrolled in Ujamaa were already attending schools that were essentially
segregated; and d) because of previous court rulings (e.g. Spangler, Miliken, Jenkins II)
that restrict the ability of school boards to counteract segregated housing patterns and
economic stratification, the school board is essentially powerless to assure that students
attending these segregated schools will ever enjoy the presumptive benefits of integrated
schools. Under such circumstances, it might be argued that any opinion striking down a
promising program like Ujamaa as race-based school segregation would be elevating
form over substance.

Of course, as many of you pointed out, it is precisely such an approach to Equal

Protection jurisprudence - an approach that insists on “color-blindness” with respect to
all government action - that the current Supreme Court would seem most likely to apply
in evaluating Ujamaa. For if in fact “benign” segregation of the sort taking place in
Ujamaa can be analogized to affirmative action. then the Supreme Court has already
rejected the notion that such “benign” racial classifications should be subject to a lower
degree of scrutiny than “invidious” racial classifications. Croson, Adarand.

Moreover, it might be argued that a case like this one underscores the wisdom of
such an approach. How, for example, might a court distinguish between a school board’s
“benign,” as opposed to “invidious,” act of segregation? Surely, the intent of Splitsville’s
black school board members in supporting the Ujamaa plan cannot be dispositive; not
only is it possible that these officials have themselves been infected by the race-conscious
belief that black males somehow cannot cope in “regular” school settings, but the school
board as a whole might be motivated as much by political expediency - a symbolic,
costless solution to the daunting problems facing the public schools - as they are by the
genuine needs of black children. Likewise, the fact that a particular majority of black
parents may support all-black schools cannot be dispositive - we might all agree that our
rights under the Equal Protection Clause are not subject to plebecite.

In fact, it is worth noting that in Bakke, one of the means by which liberal justices
like Brennan and Marshall proposed to distinguish between “invidious” and “benign”
racial classifications was whether the classification promoted or discouraged segregation
of the races - a test that would hardly be helpful to the Splitsville school board in this
case. Of course, the school board might argue for a fact intensive, “totality of the
circumstances” approach for discerning whether Ujamaa constitutes “invidious” or
“benign” segregation, an approach that would take into account the voluntary nature of
the pilot school, its negligible impact on the school system as a whole, and the concrete
benefits (at least in terms of test scores) that the boys enrolled in Ujamaa seem to be
receiving. But according to Justice O’Connor in Adarand, it is precisely to encourage
such a fact intensive inquiry, rather than to permit facile pre-determinations regarding
what is “benign” and what is “invidious,” that the Court now insists on subjecting all
racial classifications to strict scrutiny.

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 Is it possible that Ujamaa might survive strict scrutiny? In Adarand, Justice
O’Connor suggested that strict scrutiny need not always be “fatal in fact,” and that race-
based classifications might be permissible when narrowly tailored to remedy specific,
documented instances of current or prior discrimination. The fact pattern suggests that
there may have been such prior discrimination on the part of the Splitsville school board
(while a consent decree does not constitute an admission of guilt, the evidence that
brought about the consent decree might be sufficiently specific to meet the standard
discussed by Justice O’Connor in Adarand). Moreover, while a federal court has
determined that Splitsville has operated a “unitary” system for several years now, there is
at least an argument to be made that such a finding of “unitariness” should not be
determinative with respect to whether Splitsville can voluntarily institute a race-based
remedial plan; after all, the criteria for determining “unitary” status in the desegregation
context is colored by all sorts of issues (e.g. institutional competence, local control,
political legitimacy, etc.) that should not come into play in evaluating voluntary remedial
programs. Put more bluntly, a finding of unitary status may not necessarily mean that all
the ills of prior or current discrimination have been cured.

Even if a court were willing to consider some form of race-based remedy

permissible to make up for previous discrimination in Splitsville, however, it’s hard to
argue that the Ujamaa program is narrowly tailored to remedy the particular ill of prior or
current school segregation. The Court in both Croson and Adarand repeatedly
emphasized the availability of race-neutral strategies in addressing the lingering effects of
prior discrimination as one of the criteria for evaluating the permissibility of affirmative
action under strict scrutiny, and one can imagine a number of race-neutral strategies -
from smaller class sizes to enrichment programs - that could be instituted in existing
inner-city schools and that could have an equally salutary effect on student performance.

A few final points are worth mentioning. First, most of you recognized that black
students could challenge Ujamaa, even if Ujamaa was supposedly designed to benefit
blacks. On the other hand, a number of you made the mistake of assuming that white
students might have a problem challenging Ujamaa under the Equal Protection Clause
simply because they are not members of a “discrete and insular” minority. Although the
carving out race and gender as “suspect classifications” under the Equal Protection
Clause has often been justified under theories of “representation reinforcement,” the
affirmative action cases make clear that the current Court prefers to ground its Equal
Protection jurisprudence on a theory of “color-blindness,” so that race classifications are
subject to strict scrutiny irrespective of whether the “victim” of the classification is white
or a member of a minority group.

As noted above, our hypothetical case does raise some troubling issues regarding
what type of harm a white plaintiff might have suffered under the Ujamaa plan; not only
would it be hard to argue that white students in the Splitsville system somehow suffer
from subordinate status as a result of Ujamaa, but the fact pattern indicates that no true
“preference” is being conferred to black students - i.e. we are not dealing here with a
limited number of academic slots, jobs, government contracts or other goodies that a

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court might insist be allocated on the basis of “neutral” criteria. A white student might
argue that he or she is less likely to be taught by a black male teacher as a consequence of
Ujamaa, and that the experience of a race- and gender-diverse teaching staff is a good of
some sort, but it’s hard to figure how the Court could recognize such a nominal reduction
in potential diversity as a constitutionallycognizable harm without opening the door to a
wide range of other “diversity-based” claims within existing school systems.

A claim brought by white students might thus have to rely on some theory of
“expressive” harm - i.e. a theory that irrespective of any concrete harms that white
students may suffer, they, like students of all races, are diminished in some fashion
whenever the government acts on the stereotypical notions of race. From a normative
perspective, such an approach is perfectly defensible; indeed, Justices Scalia and Thomas
would probably argue that it is precisely such a normative perspective that was the lasting
legacy of Brown. Such an “expressive harm” theory also appears to underlie the Court’s
holdings in voting rights cases like Shaw v. Reno. (I am aware that I didn’t assign Shaw
v. Reno in the readings for the course, but have no fear; I gave those of you who
recognized the problem of a lack of discriminatory effect/harm full credit for your insight,
even if you didn’t have a cite or use the term “expressive harms.“) Nevertheless, it is
worth noting that the recognition of such a generalized, “societal” harm is in strong
tension with a number of traditional standing requirements, and would appear to run
contrary to the very notions of “individualized” harm that the Court has used in cases like
Adarand to attack affirmative action programs.

As for Latino and/or Asian students, a number of you argued that they do suffer a
more specific harm as a consequence of the Ujamaa plan (a harm discussed further below
in the context of gender claims). The argument runs something like this: by instituting
the Ujamaa plan, the Splitsville school board has acknowledged that a culturally
“sensitive” curriculum has a real impact on student performance. And once the school
board makes such a concession, it is obligated to provide the “advantage” of a culturally
specific curriculum for all minorities that may be under-performing within a traditional
school setting - not just African-Americans. Although it is doubtful that the Supreme
Court would ground its evaluation of Ujamaa’s constitutionality on such widely contested
theories of cultural bias in school curriculums, the argument does highlight one of the
underlying fears that would lead the Court to strike down a plan like Ujamaa - namely,
the fear that any semblance of “race-specific” schools will inexorably lead to wide-spread
racial and ethnic “balkanization.”

Question 2 - Gender Claims

As most of you recognized, VMI provides the starting point for evaluating
potential gender claims against Splitville. The decision declined to hold that state-
sponsored single-sex schools, like racially-segregated schools, are per se illegal; Justice
Ginsburg reiterated that gender classifications are not treated with the same degree of
scrutiny as race classifications, and -- without squarely deciding the issue -- suggested

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that single-sex schools might be justified as part of a State’s interest in promoting
“diverse educational opportunities.”

At the same time, the VMI decision indicates that government-sponsored single
sex schools will be subjected to exacting scrutiny by the Court, although the precise
formulation is a bit up for grabs. Historically, gender classifications have been subject to
intermediate scrutiny: a gender classification will survive only if “substantially related to
an important government interest.” In VMI, Justice Ginsburg tacked on to this
formulation what would appear to be some tougher language; citing Mississippi
University for Women v. Hogan, Ginsburg stated that “[p]arties who seek to defend
gender-based government action must demostrate an ‘exceedingly persuasive
justification’ for that action.” Writing separately, Justice Rehnquist insisted that VMI did
not ratchet the standard of review, and that the term “exceedingly persuasive
justification” simply described the difficulty in surviving intermediate scrutiny.
Irrespective of whether VMI does or does not signal a higher degree of scrutiny for
gender claims, what is certain is that any justification for gender-based classifications
must be “genuine” as opposed to hypothesized, and must not rely on overbroad
generalizations about differences between the sexes.

Applying VMI to our case, we must first answer the threshold question of
whether the creation of Ujamaa does in fact constitute gender-based government action.
Clearly, the proponents of Ujamaa were as intent on creating a “male-oriented”
environment as they were in creating a “African-centered” environment, and might not
have created Ujamaa “but for” the desire to cater to the needs of black males. Still,
Ujamaa’s open admissions policy and willingness to admit girls on the same basis as boys
may present an even tougher hurdle for female plaintiffs than it is for those bringing race-
based challenges against the school. To begin with, it is more difficult to appeal to cases
like Green for the proposition that “freedom of choice” plans are constitutionally suspect
where there has been no history of state-sanctioned segregation by gender, and where all
girls other than those who might enroll in Ujamaa learn in a environment that has an
roughly equivalent number of female and male students.

It is still possible to argue that the very design of Ujamaa makes it hostile to
female students and hence discourages them from applying, but it’s hard to tell from VMI
whether such an argument would be successful. Despite the clear hostility with which
VMI greeted prospective female cadets, Justice Ginsburg never reached the issue of what
kinds of accommodations the Institute would have to make once women were admitted.
Indeed, some of the language in VMI might support the proposition that no
accommodations whatsoever might be required (beyond perhaps separate bathrooms,
showers, etc.), insofar as any “softening” of the adversative method, curriculum and
training program would be based on the very “overbroad” generalizations about female
preferences and learning styles that Justice Ginsburg so vigorously rejects. If VMI is not
required to alter its curriculum or mission, but is only required to admit women, to pass
constitutional muster, then it is hard to see how Ujamaa’s failure to shape its curriculum
to attract more female applicants would violate the Equal Protection Clause.

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 Plaintiffs bringing a gender-based claim might address this problem in two
different ways. First, plaintiffs might argue that the Ujamaa curriculum’s explicit (and
perhaps exclusive) focus on “male achievement” qualifies as an unconstitutional gender
classification, regardless of whether women are admitted into the school. According to
this argument, the state should not be able to support any school whose core mission is to
reinforce gender stereotypes and structures of gender hierarchy. As we discussed in the
race context, the Court might not be comfortable with an argument grounded in issues of
pedagogy and curriculum; after all, if Ujamaa’s curriculum alone subjects the school to
heightened constitutional scrutiny, it might open the floodgates for female public school
children across the country to bring Equal Protection claims against their schools for
failing to focus enough on female achievement, authors, and so on. On the other hand,
the announced intention of Ujamaa to focus on male achievement might be sufficiently
unique in the public school context to cabin a ruling that such announced intentions
amount to a gender classification subject to heightened scrutiny.

Second, plaintiffs might argue that what makes Ujamaa a gender-based action is
not simply the establishment of a school targeted towards the particular needs of male
students, but the failure of the Splitsville school board to simultaneously create a school
similarly targeted towards the needs of female students. In other words, once the state
goes down the road of offering diverse educational opportunities within the public school
system, it cannot gear those opportunities only to certain sub-groups without raising
Equal Protection concerns. The language of VMI certainly lends support to such an
argument; the argument is particularly plausible if presented by African-American girls,
whose scholastic achievement levels are not sufficiently different from their male
counterparts to justify their exclusion from the presumed benefits of an “African-
centered” curriculum and extra-curricular programs.

Establishing that Ujamaa constitutes a gender classification would seem to be the

whole ball of wax, since once the Court accepted such a characterization, it’s hard to see
the “exceedingly persuasive justification” for establishing Ujamaa without, at minimum,
establishing a comparable school for underachieving girls. Unlike the situation in VMI,
the establishment of a comparable all-girls school would not be difficult, and as we’ve
already indicated, the needs of African-American girls in particular seem no less
compelling that the needs of African-American boys. There’s also no reason to assume
that the benefits of the particular pedagogical theories behind Ujamaa (e.g. engaging
students through their culture, concerns, etc.) would be less successful in raising female
achievement. Of course, if the Splitsville school board did decide to establish a female
version of Ujamaa, the Court might still have to decide the question it avoided in Hogan
and VMI - namely, whether a limited number of state-sponsored “separate but equal”
schools are permissible in the gender context, or whether the establishment of even a few
such sex-segregated schools within an otherwise gender-integrated system “inherently”
reinforce stereotypes and duplicate patterns of subordination in such a way as to violate
the Equal Protection Clause. (In answering this question, the Court might take notice of a

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widely-publicized study - released since you took the exam -- that questions some of the
previously-assumed benefits to girls that attend sex-segregated schools.)

Question 3 - Is Ujamaa a Good Idea?

I have no model answer for the third question in this part; the purpose of the
question was simply to give you an opportunity to consider some of the issues raised
above and arrive at your own conclusions. I did find it interesting that, based on a
justifiable skepticism in the prospect of truly integrated schools and an equally justified
concern over the desperate condition of many inner city schools, a slim majority of you
favored the idea of a Ujamaa-type program (although a far larger majority concluded that
as a legal matter the particular program outlined in the hypo couldn’t survive
constitutional scrutiny).

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