1. This is an open-book examination. You may use your textbooks, supplements, notes, and student-prepared outlines. You may not use commercial outlines, treatises, etc.

2. The exam has two questions. Each answer will be graded separately and so must stand by itself. Thus, do not rely upon, or refer to, anything in any other answer. You may refer to points made within any single answer.

3. The questions are of unequal weight. Please divide your time accordingly. Additionally, 10% of your grade will be based on clarity and organization of analysis.

4. Please discuss all issues reasonably presented, even if resolution of some alone would resolve the problem. Specify all grounds and reasons which support your conclusions, including alternative grounds and possible contrary arguments.

5. If you think that, with respect to any particular issue, there are insufficient facts to warrant drawing any conclusion, please indicate what kinds of additional facts would be relevant and why.

6. If you think that any of the statements of fact contain an ambiguity, please resolve the ambiguity for yourself, indicating briefly the nature of the ambiguity and your resolution.

7. Discuss only Constitutional Liberties issues, e.g., do not discuss contract or tort claims, etc.

8. Nuts and Bolts - Please:

a. Write on one side of each page only.

b. Do not write with a pencil.

c. Use complete sentences.

d. Begin the second question in a new bluebook. Clearly label each bluebook with the question number.

e. Write legibly -- if I cannot read it, I cannot give you credit for what you have written.

FAILURE TO FOLLOW THESE DIRECTIONS MAY RESULT IN LOST POINTS.

[Note to students: for purposes of this examination, assume you are legal counsel to the Mayor of Mitchellville, Lucy Lateral. Please respond to Mayor Lateral's requests for advice.]

MEMORANDUM

TO: Mayor's Legal Counsel

FROM: Mayor Lucy Lateral

RE: Fire and Police Department Policies

DATE: May 20, 1992

As you know, the citizens of Mitchellville elected me as its mayor based on my innovative public policy ideas. Your position in the Mitchellville City Attorney's Office has been to provide me with legal counsel. Two matters have arisen regarding which I need your preliminary assessment. The city council meets tomorrow morning, so I will need a response tonight.

QUESTION #1 (50%)

Last year, the Mitchellville Fire Department adopted the following no-smoking policy:

1. The Fire Department will not hire persons who smoke tobacco products, regardless of where the smoking occurred.

2. Firefighters already in the department will have 15 years to quit smoking. If, after 15 years, any firefighter is unable to quit smoking, he or she will be terminated.

The Department adopted this policy for two reasons. First, it determined that physically fit firefighters would be less likely to become injured, and would be more effective in their firefighting duties. Second, it wanted to save on workers' compensation costs. Under state law, if a firefighter develops heart or lung disease, it is presumed that the condition is job-related, which means the employee probably will collect workers' compensation benefits, thereby increasing the city's workers' compensation costs.

The City of Mitchellville has just received notice that Sam Smoker has filed a lawsuit in federal district court. His complaint contains the following allegations:

1. Mr. Smoker applied for a firefighter position on March 3, 1992.

2. He passed the written examination and a strenuous battery of tests designed to test the applicants' physical speed and endurance.

3. He failed the physical examination, but only because he admitted to smoking an average of two to three cigarettes per day. This constituted a failure of the physical exam because of the no-smokers policy.

4. According to state-wide statistics, 40% of men smoke, and 20% of women smoke.

Assume Mr. Smoker's allegations are true, and can be proven. Determine whether or not Mr. Smoker has any viable causes of action against Mitchellville under the U.S. Constitution, and explain your answer. If there are any equal protection issues, would they be decided differently under the Minnesota Constitution? Please give the strongest arguments Mr. Smoker and the City can make.

QUESTION #2 (40%)

The Mitchellville Police Department has approximately 800 officers, 10% of whom are women, and 8% of whom are persons of color. The department has experienced some race relations problems. Numerous complaints have been made by members of various minority communities of insensitivity, harassment, or brutality by certain police officers. The majority of officers have never had a complaint lodged against them; 7% of the officers account for half of the complaints.

Because of these complaints, I would like the City of Mitchellville to adopt a "Neighborhood Patrol" policy of assigning police officers to patrol the neighborhoods within which they reside. The policy also would require 1/2 of the officers assigned to each neighborhood to be a member of the predominant race or ethnic group of that neighborhood. Preferably, each patrol team would have members of diverse backgrounds.

The Neighborhood Patrol policy may require changes in hiring practices. In addition to meeting the traditional mental and physical requirements, new hires would have to match the department's needs regarding race/ethnicity and residence in particular neighborhoods. (An applicant willing to move into the relevant neighborhood would meet the residence requirement.) Mitchellville has sufficient numbers of white officers to patrol the neighborhoods that are predominately white, but does not have sufficient numbers of officers from the various minority neighborhoods. The department particularly needs additional officers representing the following racial and ethnic groups: African American, Hispanic, Chippewa tribe members, and Hmong.

If the department hires mostly minority applicants until it meets the needs of the minority neighborhoods, would it be violating the U.S. Constitution? Please explain your answers, making the strongest arguments you can on both sides of the issues.