FINAL EXAMINATION

CONSTITUTIONAL LAW LIBERTIES

Professor Mike Steenson

Friday, May 11, 1990 -- 1:00 P.M.

INSTRUCTIONS

1. This is an open-book examination. The examination consists of four questions. You must answer the first three and one of the two questions in Question # 4. The percentage that will be allocated to each question and the suggested time for the question is noted below each question. You have three hours (180 minutes) to finish the exam.

2. Place your exam number on each bluebook. Do NOT place your name on your bluebooks.

3. Number your bluebooks, e.g., 1 of 3, 2 of 3, 3 of 3.

4. Write on only one side of each page.

5. Please write in either blue or black pen.

6. Be sure to give reasons for your answers. Conclusions without explanations receive little weight.

7. Please turn in your examination and bluebooks promptly when the three hours is up. If you do not, you obtain an unfair advantage.

I.

(One hour - 35%)

State University recently modernized its computer systems. In addition to providing computers for all faculty and staff, State University installed computers in all student dormitory rooms. In order to take full advantage of the newly installed computer system, State University also established an electronic bulletin board. The bulletin board enabled people in the university community to communicate with each other.

When the university established the electronic bulletin board it placed no specific restrictions on the use of the bulletin board, although university officials anticipated that it would be used essentially for internal communications among university departments, the faculty, and student groups.

In order to gain access to the electronic bulletin board for purposes of entering messages, it was necessary only to have the access code and a computer connected to the system. both of which were readily available to faculty, students and staff. Identification was not required, so anyone who sought to use the bulletin board could do so, simply by using the code.

For the first few months after the electronic bulletin board was put into operation it was used primarily as the university anticipated. Then, the university began running into problems because of the uses people made or sought to make of the bulletin board. One of the professors in the history department, Stan Smith, an assistant professor who was visiting the university on a one-year contract, began using the bulletin board for political purposes. He decided that the bulletin board would be a good way to advertise his candidates. The president of the university, Paula Post, wants him to stop the political activity. She also does not want to renew his contract at the end of the year.

Second, a local department store close to the campus wishes to advertise on the bulletin board. President Post does not wish to permit advertising on the bulletin board.

Third, the president of the student body, Jane Johnson, made a statement over the bulletin board criticizing the local bookstore, a privately owned enterprise, for providing poor service to the university students. Her statement was that "Brick's Bookstore has inadequate supplies of books, it's poorly managed, the employees are rude, and the hours are too short."

Based upon the above facts, answer the following questions:

1. Does President Post have the right to prevent Stan Smith from putting his political statements on the bulletin board?

2. If President Post does not renew Stan's contract, and fails to provide him with a hearing or reasons for the non-renewal, will Stan be able to successfully challenge on constitutional grounds the failure to renew his contract?

3. May President Post constitutionally prevent the department store from advertising on the bulletin board?

4. If Brick, the owner of Brick's bookstore, brings a defamation suit against Jane Johnson, what constitutional standards, if any, will apply to the defamation claim?

II.

(One hour - 35%)

In 1990, the City of Mitchell adopted an ordinance intended to aid socially and economically disadvantaged businesses. The preamble to the ordinance stated that one of the goals of the ordinance is "to encourage participation in the awarding of city contracts regardless of race, color, sex, religion, national origin or ancestry." The preamble also states that the most important intent and purpose of the ordinance is "the economic development of the minority and female owned business community through a set aside program." One of the stated reasons for the ordinance is "a pattern of past and present racial, sexual and economic discrimination" in the awarding of contracts with the City of Mitchell.

The ordinance defines "socially and economically disadvantaged individuals" as

those individuals who have either been subjected to racial, sexual or ethnic prejudice because of their identity as a member of a group or differential treatment because of their handicap, and whose ability to compete in the free enterprise system has been impaired due to diminished capital and credit opportunities as compared to others in the same business who are not socially disadvantaged.

A "disadvantaged business enterprise" is defined as:

Any small business which is at least 51 percent owned by one or more socially and economically disadvantaged individuals or in the case of a publicly owned business, one in which at least 51 percent of the stock is owned by one or more socially and economically disadvantaged individuals.

The ordinance creates a rebuttable presumption that all minority persons, women, and handicapped persons are disadvantaged individuals.

The ordinance requires that 15 percent of all city contracts for supplies and services, equipment, materials and public works construction, be set aside for disadvantaged business enterprises.

There is no evidence that the City of Mitchell has discriminated against minorities, women, or the disabled in awarding contracts in the past. The term "minorities" is defined broadly to include all persons of color.

Based upon the above facts, evaluate the constitutionality of the City of Mitchell's plan.

III.

(30 minutes - 15%)

The State of William has enacted a plan that is intended to provide for abortion counseling for all women seeking abortions. The statute requires any woman seeking an abortion to obtain abortion counseling at least two days prior to the time she seeks the abortion. The woman seeking the abortion must present to her physician a signed certificate from a licensed agency showing that the woman has completed the counseling session.

The plan requires the counseling agencies to provide the following information to the women they see:

Geographically indexed materials designed to inform the woman of public and private agencies and services available to assist a woman through pregnancy, upon childbirth, and while the child is dependent, as well as adoption agencies; and materials designed to inform the woman of the probable anatomical and physiological characteristics of the unborn child at two-week gestational increments from the time when a woman can be known to be pregnant to full term, including any relevant information on the possibility of the unborn child's survival.

Evaluate the constitutionality of the plan.

IV.

(30 minutes - 15%)

ANSWER EITHER A OR B

A.

The American Church is a small church. It has less than one hundred members, all of whom live in the State of Mitchell. The Church's religion is fundamentalist, taking the Bible as its primary law. The religion was founded ten years ago by a group of people who were dissatisfied with their existing religions and the lack of support they provided. One of the fundamental bases of the American Church is the belief of its members that they should live together in groups of three families per living unit. The groupings are essential to the teaching of the Bible and to reinforcement and support of the religious beliefs of the church.

Three of the families in the Church purchased a house in the City of William. Each family consisted of a husband, wife, and one child. The three families sought to live together, but the house they purchased was zoned as a single-family dwelling. For purposes of the ordinance a family was defined as a group of individuals, living together by virtue of blood relationships or marriage. The ordinance did not place any numerical limit on the number of persons in a family unit.

The three families requested the City of William for a variance from the single-family zoning requirement. Is the City constitutionally compelled to give it? Explain.

B.

The City of Mitchell enacted the following ordinance:

The harm of obscenity includes the dehumanization, degradation, sexual exploitation, and physical injury of men, women, and children in the production of obscene movies and pictures.





Material is obscene if it displays sexually explicit portrayals of ultimate sexual acts, normal or perverted, actual or simulated.

The ordinance makes the knowing possession of obscene materials a misdemeanor. During the course of a lawful search of James John's house for illegal drugs the police found numerous magazines that fit the above definition of obscene materials. John was arrested and convicted for the knowing possession of obscene materials under the statute. Is the statute under which John was convicted constitutional? Explain.