1

Examination

Constitutional Law

Prof. Eric S. Janus

Spring 2000

Instructions:

This exam consists of three essay-style questions, and contains 4 numbered pages. Contact Student Services immediately upon opening the envelope if any pages are missing.

Permitted materials: This is an open book examination. You may consult any written materials. However, you may not consult any other person, and you may not share any information about this exam with other persons in the class.

Time permitted: You may work on this exam during one contiguous 24-hour period. You must turn the exam in to the Student Services Office within 24 hours of when you picked it up at that office. The only exception to that rule is as follows: If you pick the exam up on Saturday, you may return to the office on Monday, before noon. Also, if you pick up the exam on Friday, you may return it to the Student Services Office during its open hours on Saturday, even if those hours fall outside of the 24-hour period. Note that the Student Services Office is open only limited hours on Saturday. The exam must be returned during working hours.

In any event, even if you have the exam in your possession for more than 24 hours, you may work on it for no more than 24-hours after you open the examination envelope.

Length and format. The exam must be word-processed or typed. The overall length cannot exceed six double-spaced pages. Within that page limit, you have the following flexibility.

Question 1 - No more than 3 pages.

Question 2 - No more than 1½ pages.

Question 3 - No more than 3 pages.

Grading weights and criteria: The exam grade will be a combination of the grades for each of the questions, weighted approximately as follows: Questions 1 and 3, 40% each. Question 2, 20%. However, the final weighting may depend on the actual emphasis placed by your exam on each of the questions. Grades will be based on clarity and organization, as well as the level of doctrinal understanding displayed.

You are a law clerk. Please respond to the following memo from a partner in your firm.

Our client, T.O., is the owner of the Erotique Theatre. The theater is located within the City of Williams, State of Mitchell. T.O. tells me that the theater shows "adult" movies. Although these movies are sexually explicit, they do not contain any graphic violence. However, T.O. is worried about an ordinance recently passed by the State of Mitchell, which reads as follows:

Section 110. Misogynist Obscenity.

Definition: "Misogynist obscenity" means material that is obscene, and that, in addition, portrays or depicts women in a subservient position, as enjoying pain or violence, or as degraded and unequal persons. In determining whether particular material meets the standards for "obscenity," the finder of fact shall take into consideration, and give weight to, the fact that a work conveys a message of hate and inequality based on gender.

Crime: Any person who sells, distributes or displays misogynist obscenity is guilty of a misdemeanor, and shall be fined not more than $10,000 or imprisoned for up to one year.

T.O. is unsure whether the films he shows in the theater would fall within this definition. In particular, some of the films show women in positions that are arguably subservient to men, and some, he says, might be interpreted as showing women as unequal to men.

T.O. presented a second problem. The Anti-Violence League (AVL) is a group of women and men who are dedicated to eliminating violence against women. The AVL has organized picketing in front of the Erotique Theatre. As part of the picketing, groups ranging in size from 5 persons to 50 persons gather in front of the theater holding signs with slogans like "pornography is rape". The picketers also yell epithets, such as "rapist" and "pervert", at patrons of the theater as they enter and exit. The picketers also approach the patrons and lecture them on the connection between pornography and violence against women.

Finally, T.O. would like advice on a third issue. The City of Williams has an ordinance which reads as follows:

Demonstrations prohibited: Demonstrations, marches and similar picketing are prohibited in residential neighborhoods.

T.O. indicated to me that members of AVL have been holding silent vigils in front of the building that contains his home. T.O.'s home is in a large condominium building in downtown Williams. The building contains a convenience store and a beauty shop, as well as about a dozen condominiums. The demonstrators, though silent, are holding up signs identifying the building as the home of T.O., and identifying him as a "pornographer" who supports and condones violence against women.

T.O. would like us to advise him about possible legal actions we can take to protect his business and his privacy. Please write a legal memorandum, no more than 3 pages in length⁽¹⁾, setting out, as objectively as you can, the law governing these situations, what possible remedies we might pursue for T.O., and your assessment of our likelihood of success.

The City of Mitchell has an ordinance which reads as follows:

Zoning; Single-family residence zone.

Definition: Single-family residence. A "single-family residence" is a home or apartment in which only members of a single family reside. A "single family" may contain any or all, but only, the following: A "head" of the family. The spouse (husband or wife) of the head. The natural or adopted children of the head or the spouse. The mother of the head or the spouse. The father of the head or the spouse. No other person may reside in a "single family" residence.

The City Planning Department may designate defined areas of the city as "single-family residence zones." Any person who resides in a home located in a such a zone in violation of this ordinance is guilty of a misdemeanor.

P and Q have filed a complaint in court challenging the constitutionality of this ordinance. The complaint discloses that P and Q are both male, are unrelated to each other, and that they reside together in a home in the City of Mitchell. The home is located in a "single-family residence zone." P and Q allege that they are a couple, that they have been together for 15 years, and that they have gone through a ceremony of "solemn commitment" to each other. Their complaint discloses that they live with two children, who are the biological children of P, and have been legally adopted by Q.

You are the law clerk for the judge to whom this case has been assigned. Write a memo to the judge of no more than 1½ pages⁽²⁾, stating the constitutional law applicable to this complaint. Be sure to include a discussion of the applicable Supreme Court cases, as well as your best assessment of how the supreme court would rule on this case.

You are a member of the legal staff in the general counsel's office of the University of Mitchell, the publicly funded state school of the State of Mitchell. Please respond to the following memo from the general counsel.

As you know, the president of our university is very concerned about the educational opportunities available for women in our state. She is also concerned about the opportunities for women of color. The problem is particularly acute in the college of engineering, which has been largely male and largely white for years. Competent studies have shown that women, on the average, have difficulty thriving in the "male" environment of engineering schools, and thus are dissuaded from applying, and have disproportionately high rates of dropping out and failure when they do enroll in traditional engineering programs. Further, we have studies that show that women have the same potential as men to excel in the engineering fields, but that, on the average, women prefer a "cooperative" educational approach whereas, on the average, men prefer a competitive approach.

Our engineering school is ranked among the top five in the nation. It is well-known for its tough, highly competitive educational methods. Though women are welcome to apply and matriculate at the school, our surveys have found that the "male" and competitive atmosphere of the school are unattractive to many women.

The Governor of the state has made it clear that the economic well-being of the state depends on increasing its "high tech" capacity. The university president has determined that getting more women into engineering is one of the best ways to help accomplish this goal. The president therefore proposes to establish a new "Women's College of Engineering." This college would be open to women only. Its educational program and "atmosphere" would be designed to appeal maximally to the desires and learning styles of women. The president is unsure whether the existing engineering college would be open to both men and women, or only to men, but in either event, it would retain its highly competitive approach to education.

The president is also quite clear that she wants to increase the proportion of women of color in this new school. Studies have shown that women of color are likely to score lower than white women on the standardized tests that we normally use for admission. The president would like to use an aggressive affirmative action program to increase the proportion of women of color over what it would be if we relied solely on these standardized test scores and high school grades. She proposes counting race as a fairly significant "plus factor" in the admissions process, and/or using some other factor - such as economic or social disadvantage - as the plus factor, in the hopes that this other "race neutral" factor will accomplish the same result.

Please write a memo, of no more than three pages⁽³⁾, setting out the constitutional issues that are involved in evaluating the president's proposal. Please include an explanation of your best assessment of how we can best accomplish the president's objectives yet remain within the constraints of the constitution.

^* Remember: this exam has an overall page limit of 6 double spaced typed pages.