CONSTITUTIONAL LAW UL Prof. Obama Final Examination Autumn 2003 Instructions 1. This is an open book exam. You may use any materials or notes used in our class. You may not refer to cases, articles, material drawn from the internet, or any other material that were not used in class. 2. You will have eight hours, inclusive of travel time, to complete the exam. The exam is designed, however, to be completed in three hours. Feel free to use the extra hours as you wish. 3. The exam consists of two Parts, presented in five pages. In grading the exam, your answers to Part One and Part Two will count equally. You should therefore allocate your time accordingly. Each part contains multiple questions; you should make sure that you answer all the questions contained in each part, although the questions within each part are obviously interrelated and each part will be graded as a whole. 4, [assume that all exams will be written on a computer or word-processor. ‘You must double-space, use a 12-point font, and provide for at least one- inch margins all the way around the page. Your answer must be no more than 3000 words, but no more than 12 pages. I will stop reading after 12 ages. 5. Read each question carefully and think before you write. Please do not feel obliged to make use of the maximum number of words in formulating your answers. Precision and imagination, rather than volume, are what I am looking for. Good luck, and have a fine holiday.Constitutional Law Exam — Autumn 2003 — Prof. Obama Part 1 ‘You have just passed the bar in the State of Nirvana. Rather than toil in a large law firm, you decide to open your own practice, and advertise yourself as a general practitioner with a specialty in family law. Law week, two men, Richard and Michael, walked into you office and asked for your help. You leam that they are a monogamous, gay couple who have been living together for the past ten years, Both men are successful architects, and after devoting the ppast decade on their respective careers, they have now decided that they want to marry and raise children together. Their first choice is to have biological children through the use of a surrogate mother; if that option is foreclosed, Richard and Michael will pursue adoption, and are particularly interested in adopting children who are currently in the foster care system and thus most in need of a stable, loving home. ‘Unfortunately, they have learned that the state of Nirvana just last year passed a number of laws that seem designed to thwart their dreams of a family. The first law, titled “The Protection of Marriage Act,” was passed by a two-thirds majority of both houses of the Nirvana state legislature, and immediately signed into law by the Democratic governor of Nirvana. It reads as follows: “It being the public policy of the State of Nirvana to protect the unique relationship of marriage in order to promote, among other goals, the stability and welfare of society and the best interests of children, only the union of one man and one woman shall be valid or recognized as a marriage in Nirvana, Any other relationship shall not be recognized as a marriage or its legal equivalent, nor shall it receive the benefits or incidents exclusive to marriage from the State, its agencies, departments, authorities, commissions, offices, officials and political subdivisions. Nothing herein shall be construed to effect an impairment of a contract in existence as of the effective date of this amendment.” ‘The second law, titled the “Surrogacy Control Act,” states that any contract between individuals in which one of the parties agrees to serve as a surrogate mother (i.e. the woman agrees to be inseminated with sperm and carry a fetus to term in exchange for payment or other consideration) shall be deemed “contrary to public policy and therefore unenforceable” in Nirvana courts. According to the law’s text and legislative history, the provision is designed to a) “uphold the primacy of marriage and the sanctity of life by discouraging any commercial interests in childbearing,” and b) “to discourage the significant custody disputes that may arise in a surrogacy relationship and that may ultimately be to the detriment of the resulting child.”Constitutional Law Exam — Autumn 2003 — Prof. Obama _The third law, titled “The Child’s Best Interest Act,” is actually an amendment to ‘Nirvana’s adoption laws. The amendment read as follows: “The State of Nirvana, having determined that it is not in the best interest of children to be raised by a homosexual couple, hereby prohibits the adoption of any child by a homosexual person.” ‘The amendment goes on to state that, in the event the prohibition on adoption by homosexuals is found to violate the United States Constitution, Nirvana’s child welfare agencies and any private agencies under contract with the state shall operate under the “presumption” that itis not in the best interest of a child to be raised by a homosexual person, Although not conclusive, this presumption would have the practical effect of making it very difficult for homosexual couples to adopt children who are currently in the foster care system, since Nirvana’s foster care laws, like those of most states, makes the child’s best interest paramount in adoption placement decisions. According to the statutes preamble and legislative history, these restrictions on the ability of homosexual couples to adopt are justified by findings that “a) homosexual couples are not ‘equivalently stable to heterosexual couples; b) homosexual couples are less able to provide proper gender identification; and c) children raised by homosexual couples are more likely to be stigmatized by society.” Richard and Michael have well settled careers in Nirvana, and have no desire to move to another state. Moreover, they are deeply offended by what they consider to be blatant gay-bashing by the Nirvana legislature. Indeed, they have researched thoroughly the facts surrounding gay adoption, and have found strong (although not conclusive) evidence that a) homosexual couples that have been in a relationship for more than five years are no less stable than their heterosexual counterparts; and b) children raised in gay households are just as well adjusted and have no greater difficulty with gender issues than do children raised in heterosexual homes. They also point to the experience of other states that enforce surrogacy contracts, which indicate that such contracts, if properly structured and regulated, do not result in a statistically significant number of custody disputes. ‘They therefore ask that you prepare a memo exploring the possibility of challenging each of the laws discussed above as a violation of constitutional rights under either the Equal Protection Clause of the Fourteenth Amendment, or under the “Substantive Due Process” Clause of the Fourteenth Amendment. Because Richard and ‘Michael want a preliminary answer from you this afternoon, you do not have time to conduct exhaustive research at this stage regarding the facts of gay adoptions, gay unions, surrogacy and the like. Rather, you should structure your response based principally on the legal issues presented. Moreover, you do not need to arrive at a definitive conclusion regarding these issues. Instead, make the strongest possible argument for each claim, then explore the weaknesses of each claim.Constitutional Law Exam — Autumn 2003 - Prof. Obama Part 2 ‘You have recently accepted a new job in the general counsel’s office of the State of Utopia’s new governor, Amold Whatzanager. Not only does the job entail substantial responsibilities, but you are a big fan on the former movie-star, and have seen all of his movies multiple times. This week, the governor has asked you to examine a couple of very sensitive political issues. Part A The first involves a voter initiative, Proposition 999, which is also know as the “Color-blind America Initiative,” or CAL (Under the Utopia law, initiatives may be placed on the ballot of an upcoming election by collecting the valid signatures of 1% of all registered voters in the state; if the initiative is approved by a majority of voters in the election, it becomes law and cannot be overturned or amended by the Utopia state legislature). The language of the initiative reads as follows: “Effective January 1, 2005, the state shall be prohibited from classifying any individual by race, ethnicity, color or national origin in the operation of any state operation, including but not limited to public education, public contracting and public employment. For purposes of this section, ‘classifying’ by race, ethnicity, color or national origin shall be defined as the act of separating, sorting or organizing by race, ethnicity, color or national origin including, but not limited to, inquiring, profiling, or collecting such data on government forms.” ‘The initiative as drafted specifically exempts from this prohibition the use of racial or ethnic data for purposes of a) medical research, b) certain law enforcement functions such the identification of a particular suspect; and c) the enforcement of federal fair housing laws and other federally mandated anti-discrimination laws. The initiative is the brainchild of Dr. Joseph Wainscloth, an African-American professor of Classical Studies at the University of Utopia who two years ago successfully led an initiative banning the use of affirmative action at all state colleges and universities. ‘According to Dr. Wainscloth, the passage of CAI will not only put a final nail in the coffin of race based preferences, but it will also “junk a 17" century racial classification system that has no place in 21” century America, liberate all of us from the confining labels which the government currently imposes on us, and signal America’s first step towards a truly color blind society.” ‘A wide-range of groups, from the NAACP to the National Associate of Social ‘Workers, have expressed outrage at the initiative. They argue that the governments inability to collect and organize data on racial lines will have an immediate and detrimental effect on minority groups across the state. Because these minority groupsConstitutional Law Exam — Autumn 2003 - Prof. Obama suffer disproportionately from poverty, low test scores, unemployment, and bad health, the inability of the government to track these disparities will effectively prevent ‘government from addressing them with additional resources or targeted outreach within these communities. Moreover, these groups argue that federal anti-discrimination laws ‘may not capture all incidents of discrimination within the state, and the CAT will therefore make it impossible for disadvantaged groups to identify, much less correct, discriminatory conduct that falls outside of existing federal statutes. ‘The governor asks you to evaluate any potential claims that the CAI, should it pass, violates the Equal Protection Clause of the Fourteenth Amendment of the United States. In addition to the legal issues involved, the governor is also interested in your ‘broader perspective on whether the use of racial classifications by the state should in fact be rethought. Patt B ‘The second issue involves an emerging scandal in the credit industry. Almost all retailers across Utopia accept personal checks for payment only if they have been screened by an automated “credit-scoring” service. In Utopia, a privately held corporation named Autocheck possesses a near monopoly on this business. ‘What happens in “credit scoring” is this: at the site of purchase, the retailer electronically transmits to Autocheck information contained on the customer’s check, including name, address, telephone number, and bank account. Instantly, Autocheck runs this information through a computer containing an amalgam of credit information and statistical data (“credit scoring”) that purports to predict the likelihood that the individual ‘making the purchase may be attempting to pass a bad check. Only after the retailer receives authorization from Autocheck, much in the same way that it would receive authorization on a credit card purchase, will the retailer accept the check for payment. ‘Unfortunately, a class action lawsuit has recently been filed in United States District Court in Utopia, alleging that the credit scoring system used by Autocheck is racially biased. More particularly, the lawsuit claims that Autocheck’s credit scoring system does not simply examine an individual's credit history, but also incorporates into its formula aggregate data, such as the zip-code or area code of the individual writing the check, to determine whether their checks will be accepted. The suit further alleges that ‘Autocheck’s formula systematically rejects checks from individuals who live in majority black or Hispanic neighborhoods, irrespective of their individual banking and credit history. According to the plaints, Autocheck’s entire system is nothing more than a high-tech version of traditional “red-lining” practices, in which banks and insurance companies drew lines around certain minority neighborhoods on a map and instructed their lending officers to avoid issuing credit to businesses and individuals residing in these neighborhoods.Constitutional Law Exam — Autumn 2003 ~ Prof. Obama _ Most importantly for your purposes, the state has been named as a party to the lawsuit. ‘The plaintiffs allege that the state has violated their constitutional rights under the Equal Protection Clause of the Fourteenth Amendment in two ways. First, they point out that the state’s Office of Banks and Insurance (OBI) regulates all commercial lending and credit practices within the state, including Autocheck’s credit-scoring business. ‘According to the complaint, allegations of racial discrimination were repeatedly brought to the attention of OBI officials. For the most part, OBI officials failed to stop said practices or even investigate these claim. The complaint goes so far as alleging that at least one high-ranking official at OBI was aware of these practices and chose to the look the other way before subsequently accepting a job offer from Autocheck. Second, the lawsuit points out that the state of Utopia is itself a customer of ‘Autocheck, and utilizes Autocheck’s services at various licensing facilities around the state. According to plaintiffs, the state’s use of a discriminatory vendor makes them liable for the discriminatory acts of Autocheck, despite the fact that the contract between the state and Autocheck contains standard boilerplate language requiring Autocheck to certify that it does not discriminate in hiring, contracting, or in the general operation of its business. ‘The governor wants you to write a memo accessing the state’s potential exposure in this lawsuit. In answering his question, you should consider not only the state’s potential liability, but also the merits of the underlying claim against Autocheck. END OF EXAM