CONSTITU'nONA 1.

LAW HI

Ftnal Examiuntion

Decem bet 2000

9:00 :I.nI. to 5:00 p.m.

Autumll QUHI'ler 2{)OO "1'01'. Ohuma

Instructions

1, This is an open book exam. You may use any materials or nutes used in our class. You JllaY,Dot refer to cases, articles, etc. that were not used in class.

2. You will have eight hours, inclusive oftravel time, to complete the exam, The exam is designed, however, to be completed in three to four hours. Feel free to use the extra hours as yOLI wish.

3. The exam consists of three Parts. In grading the exam, 1 will treat Pans One and Three as equal in weight. Part Two will count for only half as much as the other two; you should therefore allocate your time accordingly. Each part contains multiple questions; you should make sure that you answer all the questions contained in each part, although the questions wilt. in each part RfC obviously interrelated and each part will be graded as a whole.

4. I would greatlyprefer that your anSWC1' be typed or word-processed.

Assuming YOl. type, you must double-space, lise a 12-point Iout, :H1d provide for at least one inch margins all the WHy around the pngc, Your :'lOSW~I' must be 110 IllOI'C than 12 pages; I will stop reading nftcr 12 pages.

5. If you really truly cannot type, or lack access to a word processor, then you may lise a. bluebook. Please write on only onc side of each bhiebook page, put your exam number on each bluebook, and remember to skip lines. The equivalent word limit for a hand-written exam is roughly 4,000 to 5,000 words.

6. Read each question carefully and think before you write. Please do 1I0t feel obliged to make usc of the 11. page maximum ill fOt'llluhltillg your answers. Precision and iUlaginntiol1, r ather than VOIUIllt!, are what count.

Good luck, and have a nne holiday.

Part One (one 110m)

Utopia State University is (not surprisingly given its name) a state university located in Utopia, a state in the United Stares. Recently USU, as it's affectionately known, hired a new President, and since the new President is a smart lady, she has hired you to serve as USU's provost and general counsel.

One of the President's top priorities is increase diversity among USU's student body. The task is not an easy one. Utopia, like most Southern states, maintained de j~).I~ segregation with respect to all public facilities - including elementary schools, secondary schools, and institutions of higher learning ~ until such laws were struck down in the U.S. Supreme Court's 1954 decision, Brown_v. Board of EdllC~\tiQIl. Massive resistance on the part of elected officials and much of the white population resulted in de facIo school segregation for at least an additional decade.

In 1990, the U.S. Supremo Court ruled that Utopia public schools had achieved unitary status, thereby ending legally-mandated desegregation programs. However, the sharp rise in segregated housing patterns throughout Utopia during the 70s and 80s means that 85% of the state's black and Latino students, and 90% of the stale's white students, continue to attend schools that arc comprised primarily of students of the same race. In addition, those school districts with predominantly black and Latino student populations typically have a) much higher rates of poverty, crime, illiteracy, and unemployment; b) lower property tax. bases, and therefore less money to spend per pupil OLl infrastructure and supplies; and c) average standardized test scores that lag significantly behind the scores of students from predominantly white districts.

USU's complicity in maintaining a two-tiered educational system in Utopia is well-documented. Founded in the 18008 as the first institutional of higher learning in the state, U.s U has always been considered the crown jewel of the state university system. it has traditionally attracted top students from throughout the region, and has maintained u highly most selective admissions policy. Until the early 60s, it also maintained a whiteonly admissions policy; black and Latino students attended the far less prestigious Utopia College of Agricultural and Technological Sciences (Utopia /\.. & T). Even after Drown, USU admitted only a handful of black and Latino students, and there exists considerable evidence that blacks and Latinos were subjected to unwritten quotas with respect to their admission until an affirmative action policy was finally adopted in the mid·70s_

USU's affirmative action policy has succeeded in boosting the university's black presence to 15 percent of the student body, and the university'S Latino presence to 10 percent of'thc student body (the state of Utopia is 25 percent black lind 15 percent Latino, respectively). As is true at public universities throughout the country, however, the policy has been the subject of heated debate, and the Utopia state legislature on several occasions has threatened to pass legislation prohibiting affirmative action from all stale universities. It is only recently. however, that the legal challenges to the program have picked LIp steam. Several white students who Were denied admission to USU have tiled suit in federal court alleging that the affirmative action program violates their rights

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under the Equal Protection Clause of the fourteenth Amendment, and given the formidable legal assistance they are receiving from certain Washington-based advocacy organizations, observers give them a strong chance of winning their suits,

USU's new President is justifiably worried about the impact a court-imposed ban on affirmative action might have on the composition ofUSU's student body, Although USU has carefully tailored its affirmative action program to meet the parameters set forth in the U.S. Supreme Court's B~*l.<~ decision, and although USU has not maintained any particular quota of black or Latino "slots" to be tilled, it is undeniably true that the average SAT~ ACT, and Advance Placement scores of incoming black and Latino USU students are well below 110t only the average scores of incoming white USU students, but arc also below the scores of many unsuccessful white applicants. Indeed, the admissions office estimates that without USU's aflirmativc action program, black and Latino enrollment at USU will drop by at least SO percent.

As a result> President bas been exploring a variety of options that might mitigate the effects ofa possible adverse court ruling. Specifically, she mentions two possible changes in the university's admissions policy:

Plan On~

The first plan would involve eliminating the affirmative action program <IS it is currently structured, and replacing it with a program whereby the top 10 percent of students fr0111 each and every public and private high school in the state (as determined by £L formula that combined Gf'As and test scores) would be automatically admitted to USU. In other words, the top 10 percent of students from a black, inner city high school would be automatically admitted under the policy, as would the top 10 percent of students from an exclusive college prep school located in predominantly while suburbs.

To the extent that the policy led to the admission of, and acceptance by, too many students for the university to accommodate, the admissions rate from each school would be cut back proportionately for the following year until an equilibrium was reached (i.e. the following year, only the top,) percent of students from each school would be automatically admitted). If slots in the incoming class remained available after implementation of the policy, then these slots would be filled by studeuis selected solely on the basis of non-controversial criteria (i. e. grades, SAT scores, the academic reputation of high schools attended, relationships to USU alumni, athletic prowess, and so forth). At no stage would the applicant's race playa factor in the admissions process

Plan Twq

The second plan that the President is considering is simpler to describe. It involves the elimination of SAT and other standardized test scores entirely from the admisslons process. Applicants would be selected by the admissions office 0]1 the basis of GPAs, recommendations, essays, and portfolios of work submitted by the students, In making its selections, the admissions office would be guided only by the objective of

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bringing together a collection of innovative student leaders who possess a diverse set of experiences bUL share" common commitment to achievement.

The President asks you to write up a brief analysis regarding the possible constitutionality of each of these plans under the Equal Protection Clause of the Fourteenth Amendment. She insists that you argue both sides of the issue with respect to each plan, but end your analysis by offering your considered opinion regarding a) how the COutts might come out on the issue; b) how she might best frame her proposal so as to survive constitutional scrutiny. and c) whether either plan is a good idea given what you know about the intersecting issues of race, education lind our current legal structure, Wherever possible, support your arguments with existing case law.

Part Two (half an hour)

You arc still the provost and general counsel at USU. You have just completed your analysis of the two new admissions policies she is proposing. and enter the President's office prepared to discuss them Unfortunately, the President has a more immediate _. albeit not unrelated - concern on her mind, and asks for your help.

1t seems that last week, the members of tile USU Law Review voted to include gay and lesbian law studellts in the category of minorities that arc covered by its affirmative action policy. The Law Review is a not-for-profit corporation managed entirely by students, who set all policy regarding membership and day-to-day operations with relatively little interference from the law school faculty. Up until now, the Review's affirmative action policy has extended only to racial minorities. In adopting the new policy with respect to gays and lesbians. however, the Review's managing editors have. cited a well-documented history of overt and covert discrimination and "gay-bashing" at the university generally and the. law sehoul in particular. Incidents they mention include, but are not limited to, the portrayal of demeaning gay caricatures in last year's law school play; the receipt by a number of gay and lesbian students of threatening e-mail messages; i\ "vigil against sin" organized by a Christian student organization that took place outside a meeting of the USU Gay and Lesbian Organization; and several instance of physical assaul; and intimidation directed at gay men by USU fraternity members.

The President points out that USU already includes II policy against hate speech and conduct directed against minorities in its disciplinary code; hostile speech and conduct directed at gays and lesbians is included in the code's coverage. Moreover, with the exception of the organizers of the Christian student vigil (who claimed first amendment protection), the perpetrators of these "gay-bashing" activities were disciplined. Nevertheless, the Review editors think it is irnportant to support g(\ys and lesbians whom they believe must endure a perpetual "hostile learning environment" at USU. The editors further believe that the inclusion of more gay and lesbian voices in the Review is consistent with the publications general mission to bring "cutting edge" legal scholarship to the. fore and to broaden legai discourse.

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The President sympathizes with the Review editors' motives. and certainly wants to encourage a greater climate of toleration and comity throughout the USU community. Still, she is worried that the Law Review's policy may be not only engender significant controversy, but may also generate legal challenges. After all, membership on the Review is highly competitive, and typically translates into enhanced professional opportunities for its members.

So, once again, the President asks you to prepare a brief memo, evaluating possible legal challenges to the Review's affirmative action policy towards gays and lesbians. For purposes of your analysis, do not spend lime (except perhaps for purposes of contrast) worrying about whether the Review's affirmative action policy With respect to racial minorities is constitutional - the President is very familiar with the arguments 011 that subject, pro and con. Rather, make your best legal arguments for and against extending such a policy to gays and lesbians, ami support your arguments wherever possible with existing case Ia.w.

Pnrt Three (one hom")

Abc and Sarah are a wealthy. professional married couple in their early forties who live in the State of Nirvana, a. state in the United States. For several years, they tried unsuccessfully to have children through natural means. Afler consultation with a fertility specialist, they discovered that although Abe's sperm was normal. Sarah's ovaries and womb were damaged in such a way that she would never be able to bear children, even with the assistance of in vitro fertilization technology.

After weighing all the options (including adoption), Abc find Sarah have decided to obtain the services of a surrogate mother. The technology, they have learned, is relatively straightforward -- the surrogate rnothers egg wilt be inseminated with Abe's sperm, .. md the surrogate will carry the child to term in her womb.

Moreover, Abe and Sarah have already identified a woman who is willing to serve as the surrogate. Her name is Mary, and she is the 29 year-old daughter of Abe's and Sarah's long-time housekeeper. Abc and Sarah have known Mary since she was a teenager, ami have a high regard for her intelligence, trustworthiness, and character. Moreover, Mary, who's in excellent health, was recently widowed when her husband was killed in a car accident. She already has three healthy young children of her OWIl, and so has no interest in additional children. Since she is having difficulty making ends meet on her job as a physical therapist, the money that she might earn as a surrogate would go a long way in helping her pay for her three children's eventual college tuition bills.

Abc and Sarah have therefore entered into an oral agreement whereby the couple will pay Mary $50,000 for her services as a surrogate, in addition to any expenses (including possible time off from work and full-time child care assistance fOI' her own children during the pregnancy) directly related to the pregnancy. In exchange, Mary agrees to a) contribute her egg(s) for purposes ofconception; b) carry the fetus to term; c) engage in a reasonable level of prenatal care -was determined by a mutually-agreed-upon

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obstetrician ~~ throughout the course of the pregnancy; d) tum the resulting newborn over to Abe and Sarah Immediately after delivery; and e) relinquish all legal rights, including but not limited to custody and/or visitation, with respect to the newborn. Abe and Sarah also agree that Mary will be paid irrespective of whether the child is born healthy, so long as Mary makes a good faith effort to abide by the terms of the contract.

Abe and Sarah now come to you, their lawyer, to memorialize their agreement with Mary in a written form. Unfortunately, you inform them that two years ago, the Nirvana State Legislature passed the Preservation of Motherhood Act, which renders contracts between filly individual or COLI pie and a surrogate mother void as against public policy. The legislative history indicates four interrelated rationales for the Act. First, the stale argues that surrogacy arrangements "erode the sanctity of childbearing and motherhood" by submitting them to truck and barter of the marketplace, and thereby "threaten the bonds of the traditional family." Second, the state argues that surrogacy arrangements "invariably lead to custody disputes" between the couple soliciting the surrogate's services and the surrogate herself, and that state courts have no principled means of evaluating the parties' legitimate but conflicting interests.

Third, the slate maintains an interest ill preventing unwanted children born as a result of breached or disputed surrogacy contracts. Finally, the state expresses th~ concern that poor women may be particularly vulnerable to the temptation to "rent out their wombs" for short term gain, without having fully considered the psychological and emotional costs involved in serving as a surrogate.

In support of these various rationales, the legislative history cites several cases from other states in which surrogacy arrangements led to bitter custody disputes. On the other hand, none of the rationales offered up by the state appear to be supported by meaningful scientific studies or statistical evidence, which is not surprising given the relative novelty of contracts between couples find surrogate mothers.

Abe and Sarah are outraged by the Preservation of MOL her hood Act, and not only want to proceed with a written contract with Mary, but also wish to finance a possible constitutional challenge to the Act. As a precursor to such action. they ask you to write a brief memo evaluating possible claims that either Abc, Safah or Mary might have under both the Equal Protection Clause of the Fourteenth Amendment and/or the "substantive" Due Process Clause of the Fourteenth Amendment? In preparing your analysis, make sure to examine both the strengths and weaknesses of each possible claim, and end with your own conclusion regarding the viability of a court challenge to the Act.

END OF EXAMINATION

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