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Students in Con. Law III Prof. Obama 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’ intended to be exhaustive (although t 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’ Claims s

One way to approach this question is to first consider whether Futura’ ban on s cloning would violate the constitutional rights of Dolly if she were competent and s decided to reproduce herself through cloning. If the answer is yes, then Futura’ 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’ self is s 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’ Due Process Clause. s 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’ outright ban on cloning involves no such s 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’ approach might lead to an extremely s 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’ worth, Webster’ Dictionary defines procreation as “to bring a living thing s s 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’ self’ is “deeply rooted in the Nation’ history and traditions.” Moore. In the s s 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’ approach in Casey. In that case, Justice s 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’ not only does the Court identify s; 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’ choice to reject even life-sustaining medical treatment. s The same concern is evident in the abortion decisions; the state can’ force a Cruzan. t woman to maintain a pregnancy against her wishes. Roe. If the state can’ force a t 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’ right to do whatever he or she s 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’ outright ban constitutes an “undue s

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burden” on Dolly’ decision to replicate, while upholding regulations that severely restrict s 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’ ban on cloning to be merely a restriction on one highly specialized technique s 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’ Claims s

Most of the discussion above regarding the appropriate standard of review with respect to Dolly’ potential claim applies with equal force to any consideration of Mary’ s s and Joseph’ potential claims. Again, it’ worth considering first what Mary and s s Joseph’ claims might be if not complicated by the fact of Dolly’ incapacity - in s s 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’ genetic s 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’ womb s 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’ Interests - How Compelling? s

Depending on how the Court resolves the “fundamentalness” issue, the Court would evaluate Futura’ justifications of its ban on cloning under either a) strict scrutiny s (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’ asserted rationales for a cloning ban are drawn s almost verbatim from President Clinton’ Commission on Human Cloning, which sought s 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’ rationales in turn: s 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’ use of social ostracism s 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’ asserted interest s 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’ goal under the extremely s 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’ necessarily mean, however, that t 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’ interest in protecting the “potentiality of human life” to be s 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’ interest in preserving the s 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’ fundamental right to bear s children or form a family solely on the basis of the state’ abstract judgment of what a s 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. s The question, then, boils down to this - can Futura’ 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’ ban under rational basis review -- as many of you pointed s

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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’ child is one’ genetic twin, scientists claim they are God, and the s s 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’ moral judgments, standing alone, can override an s individual’ fundamental rights or liberty interests. s 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’ outright ban, s either because cloning is not a fundamental right or because Futura’ asserted interests are s sufficiently compelling to override Dolly’ or her parent’ liberty interest in cloning, then s s 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’ or her parent’ rights under the substantive prong of the Due Process Clause. s s 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’ consent, and parents of s terminally ill, comatose adults like Dolly, who must show “clear and convincing” proof of their child’ consent. s Unfortunately for Mary and Joseph, this particular classification is not considered “suspect” under the Court’ Equal Protection jurisprudence, and hence would be subject s 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’ last hope would be to argue that Dolly’ general statements s s regarding cloning do in fact constitute informed consent to be cloned, or, in the alternative, that Dolly’ living will delegates to Mary and Joseph all medical decisions, s including the decision to have Dolly cloned. Like the parents in Cruzan, Mary and Joseph would go on to argue that the state’ imposition of a “clear and convincing” s evidentiary standard violates Dolly’ right to have her wishes regarding “medical s 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’ hard to see how Mary and Joseph could succeed s 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’ evidentiary law to heightened scrutiny. s 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’ footnote in s Cruzan, in which she states that the Court has reserved the question of delegation of decision-making authority. Mary and Joseph obviously wouldn’ be home free under t s such an interpretation of precedent - a state might still insist that Dolly’ 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’ be that t 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’ arguments more attention under heightened scrutiny, and would scrutinize with s 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’ interest in s 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 “allblack, 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’ voluntary s 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 “Africancentered” 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 “selfsegregation” 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’ black community; b) Ujamaa has no appreciable s

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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 racebased 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’ hard to s 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’ hard to figure how the Court could recognize such a nominal reduction s 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’ assign Shaw t 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’ have a cite or use the term “expressive harms.“) Nevertheless, it is t 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’ constitutionality on such widely contested s 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 statesponsored 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’ interest in promoting s “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’ open admissions policy and willingness to admit girls on the same basis as boys s may present an even tougher hurdle for female plaintiffs than it is for those bringing racebased 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’ hard to tell from VMI s 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’ failure to shape its curriculum s 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’ explicit (and s 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’ curriculum alone subjects the school to s 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 “Africancentered” 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’ hard to see s 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 s compelling that the needs of African-American boys. There’ 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’ survive t constitutional scrutiny).

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