CONSTITUTIONAL LAW - LIBERTIES SPRING 1993

Professor Iijima

FINAL EXAM - SAMPLE ANSWERS

GENERAL GUIDELINES - These answers are outlines of possible issues. Exams should be written in complete sentences. Students need not cover all issues to receive the total points possible. Additionally, students may receive points for issues not outlined below.

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[Note to students: for purposes of this examination, assume you are legal counsel for Public School District 875, State of Confusion. Please respond to Superintendent Rose Parrot's requests for advice.]

MEMORANDUM

TO: District 875 Legal Counsel

FROM: Superintendent Rose Parrot

RE: School District Policies

DATE: May 8, 1993

I need your legal opinion regarding several matters which the school board will be considering at its meeting tomorrow. Please discuss whether or not the three matters outlined below raise any issues arising under the federal constitution. (I have asked another lawyer in your department to look into some other areas of law.)

QUESTION #1 (20%)

In 1992, the State of Confusion fell from 5th place to 7th place in the Persons magazine's "Most Livable States" rankings. The decline in average Scholastic Aptitude Test (SAT) scores of Confusion's high school students was the primary cause for this drop. In response, Confusion's legislature is considering a statute that would prohibit the employment of any person under the age of 18 if that person has failed to maintain a "B" average for the preceding 2 grading periods. (Incidently, the State of Confusion requires residents to attend school until the age of 16. Additionally, all high schools use the A to F grading system.)

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QUESTION #2 (40%)

Two students, Jason and Stephanie, have been suspended from Robert Dough High School ("School"), a public school in District 875. Their teachers were unable to manage their disruptive behavior. Before suspension, the School gave Jason and Stephanie notice of the School's discipline policies and a full opportunity to be heard regarding the incidents in question. The School's principal correctly informed Jason's and Stephanie's parents that there were no programs in the public school system equipped to handle students such as Jason and Stephanie. Because both students are 17 years of age, they could, if they desired, remain out of school. If they wished to complete their high school educations, their only option within the geographical boundaries of the District would be to attend God's Mercy Academy ("the Academy").

The Academy, a private school run by the Catholic Church, specializes in educating students with behavior problems. Its curriculum emphasizes self-discipline. Although it offers religion courses as electives, students are not required to take any religion courses in order to graduate. When District 875 refers a student to the Academy, District 875 pays the Academy the amount of money the District would have allocated for that student's education in the public school system.

Both Jason and Stephanie applied for admission to the Academy. The Academy admitted Jason, but rejected Stephanie. The Academy has a policy against admitting, or allowing the continued enrollment, of students who become pregnant out of wedlock. It learned (correctly) that Stephanie was pregnant as a result of sexual intercourse with Jason. (Robert Dough High School did not know about this pregnancy and did not base the suspensions on the pregnancy.) Stephanie and Jason are not married and do not wish to be married.

QUESTION #3 (20%)

Al Bore, principal of Jimmy Clinton Junior High School, shut down the student newspaper because of an issue that included a clinic's abortion counseling advertisement. It also contained parodies on the use of condoms, including a suggestion that people wear them over their heads to protect themselves against flu. Mr. Bore told the newspaper staff that the issue "shocked the sensibilities of many students, faculty, staff and administrators. Such journalism will not be tolerated." Mr. Bore will allow the newspaper to resume publication if the newspaper's staff abides by new editorial guidelines that forbid "obscenity, pornography, and other indecent material."

SAMPLE ANSWERS

  1. QUESTION 1


    1. State (i.e., Governmental) Action?


Yes, this question involves a proposed statute, an action by the legislative branch of government.

    1. Individual Interest(s) at Stake?


Right to employment of persons under 18.

    1. State Interest(s)?


"Most Livable States" ranking; SAT scores of students; education of students.

    1. Constitutional Clause(s) Under Which the State Action Can be Challenged?


      1. 14th Amendment (14-A)


Because the governmental body involved is a state, the 14-A would be the source of the challenge. (The protections provided by the 5-A, as well as most of the body of the original constitution, limit the power of the federal government.)

      1. Applicable 14-A Provisions


        1. Due process clause


          1. Procedural due process analysis


          2. Substantive due process analysis


        2. Equal protection clause


          1. Fundamental rights branch


          2. Suspect classifications branch


      2. Contract Clause


  1. QUESTION 2


    1. There are three separate actions taken that should be analyzed:


      1. School's suspension of Jason and Stephanie.


      2. "Referral" of Jason and Stephanie to the Academy.


      3. Academy's rejection of Stephanie's application.


    2. School's suspension of Jason and Stephanie


      1. State (i.e., Governmental) Action? Yes, public school districts are considered part of the state government.


      2. Individual Interest(s) at Stake? Jason's and Stephanie's interest in an education.


      3. State Interest(s)? The education of minors. Here, School needed to control behavior of students in order to allow education of all students.


      4. Constitutional Clause(s) Under Which the State Action Can be Challenged?


        1. 14th Amendment (14-A)


          1. Because the School is considered part of the State of Confusion, the 14-A again would be the source of the challenge.


          2. Due process clause


            1. Procedural due process analysis


              1. Deprivation of life, liberty, or property?


                1. Here, right to attend School taken away, therefore deprivation exists.


                2. Liberty? There might be a liberty interest similar to the job-plus-reputation liberty interest. It is arguable that the suspensions damaged their reputations, thus creating an education-plus-reputation liberty interest.


                3. Property? Was there an entitlement to a high school education? Roth. Possibly, as states generally provide free education through 12th grade. This could be considered a source of entitlement independent from the constitution.


              2. But even if deprivation of liberty &/or property such that some process was due, facts state that students were given notice and opportunity to be heard. Therefore, probably no PDP violation by the School.


            2. Substantive due process analysis


              1. Assuming fundamental "liberty" interest in education, at least under the education-plus-reputation theory, students entitled to challenge suspension under strict scrutiny. School's interest in controlling student behavior and providing an environment conducive to education would be compelling. Question, however, whether suspensions would be necessary. Other options would be detention, conferences with parents, etc. Suspensions may have been necessary if other options attempted & were ineffective.


              2. If no fundamental right, a court would apply the rational basis test. The School's educational interests would be legitimate, and the suspensions would be rationally related.(1)


          3. Equal protection clause


            1. Fundamental rights branch - If problem students being denied a fundamental right (liberty interest?), then use strict scrutiny. Question whether the use of the classification necessary to the School's compelling interests in education.


            2. Suspect classifications branch - No discrimination against a suspect class, as students with behavior problems are not a suspect class. Possible disparate impact on protected classes, e.g., race or gender? No evidence of such impact. Even if disparate impact, no evidence of intent.


    3. "Referral" of Jason and Stephanie to the Academy.


      1. State (i.e., Governmental) Action? One again, the public school district, part of the State of Confusion, performed the referral.


      2. Individual Interest(s) at Stake?


      3. State Interest(s)?


      4. Constitutional Clause(s) Under Which the State Action Can be Challenged?


        1. This may be a question of the state's establishment of religion.


        2. Because this is a state acting, as opposed to the federal government, 14-A would be the applicable provision.


        3. The 14-A due process clause protects individuals from the State's deprivation of liberty interests, or fundamental rights, including first amendment rights. 14-A incorporates the freedom from establishment of religion.


        4. The Court is more tolerant of programs providing benefits to citizens generally than for direct aid to religious institutions. Because the referral to the Academy is the provision of benefits to students, this may not be violative of the establishment clause.


        5. The younger the students, the more suspicious courts tend to be of religious involvement in public education. A secondary school is involved, as opposed to primary (intense scrutiny) or higher education (less scrutiny).


        6. Under the Lemon test, the analysis would be whether the State's actions:


          1. Have a secular purpose


Here, the purpose was to allow students to complete their high school education, a secular purpose.

          1. Had a principal effect of neither advancing nor inhibiting religions.


Here, the principal effect would be to help the students, not to affect a church, one way or the other.

          1. Foster excessive governmental entanglement with religion.


Here, there was very little entanglement. The School merely informed the students of their only option within the district. The fact that the School district would pay for the students' tuition is more problematical. States have been allowed to pay for busing to parochial schools, & loan secular textbooks to parochial schools. They have not been allowed to suppliment the salaries of teachers of non-religious subjects at private schools, however.

        1. In Lee v. Weisman, the Court found establishment where the government coerced students to participate in the exercise of religion.


          1. Here, there may be an element of coercion, as the students have to attend a parochial school if they want to continue their high school educations. Similar to Lee where students forced to be present a reading of prayer if they wanted to attend graduation ceremonies.


          2. Although no requirement to attend religion classes, in Lee no requirement to participate in prayer.


    1. Academy's rejection of Stephanie's application


      1. State (i.e., Governmental) Action?


        1. Here, the actor, the Academy, is not a branch of either the state or federal government, so there is no direct state action.


        2. Indirect state action?


          1. Public function doctrine? A private party's actions may be attributable to the state where the state has delegated to the private party a power "traditionally exclusively reserved to the State." Although State's have traditionally had power over education, it is arguable that the State's power has not been exclusive, as private entities (schools, families, churches) have also provided an education. The Court, however, did include education in its (dictum) list of possible examples of exclusive functions.


          2. The State, through the school district, has not dominated the activities of the Academy such that the Academy must be deemed to act with the authority of the government. Edmonson (peremptory challenges case).


            1. Extent to which Academy relies on state's assistance & benefits


            2. Whether traditional governmental function


            3. Whether injury caused aggravated in unique way by incidents of governmental authority.


            4. Extensive use of state procedures w/ overt, significant assitance of state officials?


            5. Academy could exist without governmental participation?


          3. State approved Academy's action? No.


I believe the court would be unlikely to find state action. Assuming I'm wrong on this point, however, I will continue the constitutional analysis.

      1. Individual Interest(s) at Stake? Stephanie's right to finish high school.


      2. State Interest(s)? Policy against enrolling preganant students. Possible interests: morality, religious beliefs, educational environment (does presence of pregnant students distract other students?).


      3. Constitutional Clause(s) Under Which the State Action Can be Challenged?


        1. 14-A again applicable since State is governmental entity arguably involved.


        2. Applicable 14-A Provisions


          1. Due process clause


            1. Procedural due process analysis


            2. Substantive due process analysis


          2. Equal protection clause


            1. Fundamental rights branch - Interference w/ rt to education, privacy (rt to bear children).


            2. Suspect classifications branch


              1. No special protection for pregnancy. Not considered gender discrimination. Therefore, use rational basis standard of review, as opposed to intermediate scrutiny.


              2. Possible race discrim? No evidence of disparate impact or intent.


          3. Academy/State protected under free exercise clause?


            1. Free exercise means rt to believe & profess religious doctrine.


            2. Government may not punish the expression of religious doctrines.


            3. Sherbert test: Government may only substantially burden religiously motivated conduct by a compelling state interest & by means narrowly tailored to achieve that interest.


              1. The State's interest in compelling the Academy to eliminate its pregnancy rule would be to:


                1. Avoid gender discrim? But it is not gender discrim.


                2. Ensure educational opportunities to expectant mothers? But here, the state was the entity that originally suspended Stephanie. State could provide her with education itself.

1. I have not done a full analysis, as I have not discussed why these interests would be legitimate & the means rationally related.