CONSTITUTIONAL LAW III

Final Examination

December 10 ,1998

9:00 a.m. to 5:00 p.m.

Autumn Quarter, 1998

Prof. Obama
 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, etc. 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 to four hours. Feel free
to use the extra hours as you wish.

3. The exam consists of two Parts. In grading the exam, I will treat each Part as
roughly equal in weight. The numbered questions within each part will be
accorded roughly equal weight, although they are obviously interrelated and
will be graded as such. In other words, don’t worry if your answer to one
numbered question is longer or shorter than another. Just make sure that you
have answered ail the questions in each Part.

4. I would greatly prefer that your answer be typed or word-processed.

Assuming you type, you must double-space, use a 12-point font, and
provide for at least one inch margins all the way around the page. This
works out to roughly 435 words per page (five characters per word).
Your answer must be no more than 12 pages (or roughly 5,200 words); I
will stop reading after 12 pages.

5. If you really truly cannot type, or lack access to a word processor, then you
may use a bluebook. Please write on only one side of each bluebook page, put
your exam number on each bluebook, and remember to skip lines. The rough
5,200 word limit still applies.

6. Read each question carefully and think before you write. Please do not feel
obliged to make use of the 12 page maximum in formulating your
answers. Precision and imagination, rather than volume, is what counts.

Good luck, and have a fine holiday.

 Part One (One and one half hours)

New Prosperity is the capital of Prosperity, a midwestern state in the United

States. Like many medium-sized, midwestem cities, New Prosperity went through tough
economic times in the 1980s, as manufacturing plants closed and high-tech industries
located in surrounding suburbs. Also like many large midwestem cities, New Prosperity
suffers from long-standing patterns of housing segregation: most of the thirty percent of
New Prosperity’s population that is black resides in an impoverished enclave - known as
Hardsville -- on the west side of town.

In part, Hardsville’s racial isolation is the result of white flight and the limited
economic means at the disposal of the black community. It is also well-documented,
however, that Hardsville’s racial isolation arose in part due to decisions by a white-
controlled city government prior to the seventies that were purposely discriminatory.
Public housing was concentrated in the area, and the courts enforced restrictive covenants
for many years. For years after blacks moved into the area, Hardsville did not receive its
fair share of city services and school dollars. Roads and public transportation lines were
routed to inhibit easy access between Hardsville and the rest of the city. Indeed, only one
main transportation artery exists between Hardsville and the city’s center -- the six-lane
Division Parkway, which runs east-west from one end of the city to the other, and carries
not only vehicular traffic, but the city’s primary east-west bus line.

There is no indication that the city continues to engage in overt discrimination.

The current mayor, James Pleasant, is considered a liberal who has won over black voters
by fairly distributing city services, hiring blacks to prominent administration posts, and
financing affordable housing and commercial strip development in Hardsville.
Nevertheless, patterns of segregation and black poverty remain deeply entrenched, and
many Hardsville residents harbor a lingering suspicion that they are not welcome in the
city’s more prosperous east side.

Recently, the economy of New Prosperity has been on the rebound, driven largely
by a surge in the service sector. A major symbol of that economic resurgence is the New
Prosperity Mall, a state-of-the-art shopping complex built on the site of a former steel
plant, on the north side of Division Parkway and lying about half-way between Hardsville
and the more prosperous east side of town. With over a hundred stores and restaurants,
an indoor garden and multiplex theater, the mall has become a regional attraction,
bringing millions of dollars of business into the city, providing numerous retail jobs to
city residents, and fattening the city’s tax base.

The Pleasant Administration has garnered much of the credit for the mall’s
success, since it was the Administration that put together the public-private partnership
that got the project off the ground. To jump start the development, the city purchased the
site five years ago and made it development-ready through the issuance of a general
obligation bond, to be paid back out of the city’s tax revenues over twenty-five years.
Then, after it was unable to sell the property to a developer outright because of the

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economic risks involved, the city entered into an agreement with Mogul Development
Corporation, whereby a) Mogul would construct the mall for a hefty development fee
paid out of bond proceeds; b) the city would retain ownership of the mall for a minimum
two-year period, but would lease it to Mogul during this two-year period at a favorable
(below market) rate; c) Mogul would in turn sub-lease the retail and restaurant space
within the mall at whatever rents the market would bear: and d) at the end of the two-year
"trial” period, Mogul could either terminate its lease, extend its lease under similar terms
for an additional five years, or exercise an exclusive option to buy the mall from the city
for a pre-determined price.

Under the terms of the agreement, Mogul was to maintain almost complete
control over management and day-to-day operations of the mall during the initial two year
period, subject only to a set of provisions contained in all contracts with the city that,
inter alia, prohibited Mogul from discriminating on the basis of race with respect to the
various operations of the mall (i.e. employment decisions, the leasing of space within the
mall, the treatment of persons patronizing the mall, the selection of contractors for
janitorial and security services, the selection of suppliers, and so on). Also under the
terms of the agreement, Mogul was required to include these anti-discrimination
provisions in all of its sub-leases. Should Mogul choose to exercise its option to purchase
the mail from the city, it would obviously no longer be subject to these lease terms, but
would be subject to all city ordinances regulating businesses and property ownership,
including a civil rights ordinance that prohibits all businesses within the city from
discriminating on the basis of race, gender, etc. in terms essentially identical to those
contained in the lease between Mogul and the city.

By the end of the mall’s first two years, the results of the project exceeded the
city’s most optimistic expectations. As a result of the mall’s success, Mogul exercised its
option to buy, has owned and operated the mall free and clear (and very profitably) for the
past year, and anticipates healthy profits for the foreseeable future. The city has recouped
its development costs, and is servicing its general obligation bond out of the sale
proceeds, rather than tax revenue; it has also not had any involvement whatsoever in the
project (beyond providing basic services such as fire and police protection) since the sale
to Mogul. Everybody seems just thrilled with this win-win situation.

Well, almost everybody. Six month ago, a community organization called

Hardsville Neighbors United filed suit in United States District Court, alleging that the
city, in concert with Mogul, has engaged in a pattern of racial discrimination against
black residents of Hardsville in violation of the Equal Protection Clause of the Fourteenth
Amendment. There are two aspects to this claim.

First, the complaint alleges that in designing the mall, the city, in concert with
Mogul, deliberately failed to provide any safe and convenient access route for Hardsville
residents who seek to travel by bus to the mall, and that the city and Mogul did so
because they wanted to limit the number of blacks generally, and poor blacks in
particular, who would patronize the mall. In support of this allegation, plaintiffs point out

Constitutional Law III - Fall 1998 - Final Examination - Page 2 of 8

that the bus for passengers coming from Hardsville heading east stops on the south side
of Division Parkway - that is, on the side away from the mall. There is no pedestrian
overpass leading from the bus-stop directly to the mall, and the only cross-walk across the
highway is located two full blocks away from the bus stop; from there, it is the equivalent
of another two city blocks, across a large parking lot, to the mall’s main entrance.

Not only does the lack of adequate access make it extremely inconvenient for
even able-bodied passengers to visit the mall by bus (and almost impossible for the
elderly and parents with small children to do so), but the lack of ready access to the mall
from the bus-stop is also dangerous: already, at least one Hardsville teen has been killed
by an on-coming car as she tried to race directly from the bus stop to the mail across the
highway. Moreover, the plaintiffs allege that, while it is true that whites traveling from
the east side of the city by bus theoretically suffer the same access problems - at least on
their way home from the mall - as do blacks coming from Hardsville, statistics show that
blacks in Hardsville are eight times more likely to travel by bus than are whites, and that
the city was aware of these statistics when it and Mogul designed the mall as they did.

The complaint’s second, related count alleges that since the mall opened, the city,
in concert with Mogul and its sub-lessees, has systematically harassed and intimidated
black shoppers so as to discourage their presence in the mall. More specifically, the
complaint alleges that, both before and after the city’s sale of the Mall to Mogul, a) mall
security guards hired by Mogul have been under instructions to stand near any
congregation of black teenagers (but not white teenagers) in an effort to intimidate them
and “move them along;” b) with the knowledge and encouragement of Mogul, undercover
security guards and electronic surveillance operators employed by a number of individual
stores in the mall systematically monitor and follow black customers as they shop, but do
not subject white shoppers to similar treatment; c) on at least five occasions since the sale
of the mall to Mogul, and on at least five occasion during the period that the city still
owned the mall, black shoppers (but no white shoppers) have been falsely detained by
Mogul security guards for shoplifting; and d) such discriminatory activity has occurred
with the city’s knowledge and encouragement.

The lawsuit is still in the preliminary discovery stages, and while no conclusive
evidence of wrongdoing has surfaced on the part of either Mogul or the city, some
troubling facts have already emerged:

First, with respect to the bus stop allegation, it is clear that the city made
conscious decisions not to build a pedestrian overpass from the existing bus stop to the
mall, move the existing bus stop closer to the crosswalk, or route buses into the mall.
The city planners involved in the process state that the reasons for these decisions were
entirely non-discriminatory - an overpass would have required the purchase of land
currently owned and operated by homeowners, and hence added significantly to project
costs; moving the bus stop would have constituted a traffic hazard; and routing a bus
through the mall would have impracticably lengthened travel times on the bus for
Hardsville residents traveling to and from the city center.

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 On the other hand, city planners do admit that they were aware, at the time they
made their decision, of statistics showing blacks to be far more likely than whites to use
the bus for shopping trips. They also acknowledge that contrary to normal procedures,
the city did not conduct public hearings in designing the mall or traffic patterns in and out
of the mall, but instead “fast-tracked” the project to ensure completion on schedule.
Finally, staff has discovered a confidential memorandum from Mogul to the head of the
city’s planning department, in which Mogul stated that “the types of persons traveling by
bus - particularly those traveling from the western portion of the city -- do not meet the
customer profile that the New Prosperity Mall should be trying to attract. In fact, they
tend to be low-income teenagers without disposable incomes who desire to ‘hang out’
rather than shop and who tend to intimidate more upscale, target customer.” Although
the head of the planning department denies that this memorandum was the basis for
decisions regarding the bus stop, and insists that Mogul had no formal role in such
decisions, he also admits that he “may have taken the memorandum into account” during
the city’s internal decision-making process.

As for the shopper harassment allegations, documents and deposition testimony

indicate that since the city sold the mall to Mogul. two stores in the mall have maintained
an explicit, albeit secret, policy of following and closely monitoring black, but not white,
customers; there is no hard evidence, however, that the two stores maintained a similar
policy, formal or informal, prior to the city’s sale of the mall. According to the
documents and deposition testimony, these stores deny any disciminatory intent, but
rather, felt justified in instituting these surveillance practices because of statistics showing
that while only twenty percent of their paying customers were black, sixty percent of
apprehended shoplifters were black. Testimony also indicates that certain Mogul officials
were aware of this policy on the part of the two stores, but did nothing to cease, or even
discourage, the practice.

City officials point out that no customer complaints of discriminatory surveillance

or harassment have ever been formally lodged with city, and that because of manpower
shortages, it is the city’s general policy not to investigate any charges of discrimination
absent a formal complaint. In other words, they did not closely monitor Mogul’s security
operation during the period that the city owned the mall, and have not monitored Mogul’s
activities at all since Mogul exercised its option to purchase the mall. They indicate that
during the two-year period that the city owned the mall, they did become aware of
complaints from some retailers that boisterous gangs of teenagers were scaring off
customers, and that Mogul informed them of its policy of stationing security guards near
such congregations of youth as a way of dealing with the problem. City officials insist,
however, that they understood this policy to apply equally to black and white teenagers.
They also indicate that during the period that the city owned the mall, they were made
aware of two incident in which a black shopper was falsely accused of shoplifting and
briefly detained by Mogul security guards; however, they viewed these incidents as
honest mistakes, and not cases of racial bias.

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 Finally, several city officials have indicated that they were aware, prior to the city
entering into the original agreement with Mogul, that Mogul had been successfully sued
under state civil rights statutes in an adjoining state for the harassment of black customers
by Mogul security guards operation at a Mogul-owned mall in that state. Although city
officials questioned Mogul about this lawsuit at the time the parties were still negotiating
the deal, the head of the planning department states that his staff never independently
investigated the merits of the suit, and that he was satisfied with Mogul’s explanation for
the lawsuit: namely, that the discriminatory behavior which led to the lawsuit had
occurred as a result of a few rogue security guards, and not as a result of any formal or
informal Mogul policy.

As might be expected, the lawsuit is turning out to be a huge embarrassment to

Mayor Pleasant, and -this being an election year - he hires you, a hot-shot attorney at a
blue-chip law firm, to provide him and the city’s lawyers with some high-priced legal
advice. In a memo, he asks you to answer the following question:

Assume all the facts obtained through discovery thus far are true. Assume further
that some, if not all, of Mogul’s executives tolerated -- and perhaps even
encouraged - the differential treatment of black customers in the mall by their
security guards or their lessees/sub-lessees, but that the record is not clear on
whether a) they did so on the basis of active animus towards blacks, b) an interest
in pandering to white customers who they thought might be scared off by the
presence of blacks at the mall, c) a genuine belief, based on their readings of the
statistical data, that blacks were more likely to engage in disruptive or criminal
behavior; or d) or some combination of motives. What is the likelihood that the
city will be held liable for violating the constitutional rights of blacks under the
Equal Protection Clause of the Fourteenth Amendment? In answering this
question, please argue both sides of the issue and offer you considered conclusion
on the ultimate outcome. Also, please be sure consider separately each of the two
counts presented in the complaint (the bus stop count and the harassment count).

Part Two (One and one half hours)

Eight years ago, Tony and Cleo married and settled in the State of Nirvana, a state
in the United States. For over five years, the couple tried to have a child without medical
intervention, but were unsuccessful. Doctors are uncertain as to why the couple failed to
conceive in the traditional manner: Tony’s sperm count is normal, and although Cleo is
thirty-nine, and hence near the end of her childbearing years, her reproductive system
seems normal as well.

Two years ago, Tony and Cleo decided to try invitro fertilization or IVF - a
procedure that required a) Cleo to undergo a month long regiment of shots and orally
administered fertility drugs (with some uncomfortable side-effects) to increase the
production of harvestable eggs; b) the removal of the eggs from Cleo in a brief but

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invasive procedure; c) the fertilization of the eggs with Tony’s sperm in a laboratory; and
cl) the transfer of the eggs back into Cleo’s uterus. The doctors explained to the couple
that because the success rate of IVF is only 30 percent, the medical team attempts to
harvest and fertilize as many eggs as possible at one time, but that they typically do not
return all the fertilized eggs at once into the woman’s uterus; instead, those eggs not
reintroduced in the woman’s system can be stored (frozen in cannisters) and used in later
attempts at pregnancy.

The first time Tony and Cleo tried the procedure, only four eggs fertilized, and
although all of them were inserted into Cleo’s uterus, none of them “caught” on the
uterine lining and resulted in pregnancy. The second time out, the doctors successfully
fertilized eight eggs, and again introduced four into Cleo, freezing the other four.
Unfortunately, the procedure again was unsuccessful.

The financial and emotional strains of these failed attempts to conceive a child’
finally proved too great for the couple’s marriage to bear. Six months after the second
IVF attempt, Tony and Cleo agreed, under relatively amicable terms, that they had grown
distant from each other, and should get divorced.

After the divorce was finalized, Tony moved to another state, got a new job, and
entered into a serious relationship with another woman. In fact, he had not seen or
spoken to Cleo for close to a year when he received a letter from her. In the letter, Cleo
indicated her intent to use some of her divorce settlement money to try IVF one last time,
using the four eggs (fertilized by Tony’s sperm) that remain frozen in the Nirvana fertility
lab. Cleo pointed out that she is not currently in a relationship with a man, and because
she is nearing menopause, these eggs may represent best chance at getting pregnant,
particularly since she has neither the desire or financial resources to start the IVF process
all over with an anonymous sperm donor. She concluded the letter by saying that she
wished for Tony’s blessing, but was determined to go ahead with her plan, with or
without his agreement.

The letter came as a shock to Tony. Although he is sympathetic to Cleo’s plight,

he feels very strongly that his life with her is behind him. Moreover, he has always held
the belief that it is in a child’s best interest to be raised in an intact, two-parent family, a
belief that grows partly out of his own experiences as a child who’s father abandoned the
family when Tony was very young. In the event that Cleo does bear Tony’s child, he will
not, because of the geographic and emotional distance that now exists between the two of
them, be able to visit that child more than sporadically. Tony finds such a prospect
simply unacceptable. As a result of these concerns, Tony has decided that he wishes to
have to frozen embryos destroyed.

Normally, the disposition of frozen embryos would be a matter of contract. Like

most fertility clinics, Nirvana has a standard form that couples seeking IVF must fill out
and sign prior to undergoing the treatment; the form specifically asks that the couple
agree on what is to be done with unused embryos, and the fertility clinic will decline

Constitutional Law III - Fall 1998 - Final Examination - Page 6 of 8

treatment if the couple (or, in cases involving donors, the provider of sperm and the
provider of egg) cannot arrive at an agreement. Due to a clerical oversight, however, the
form was never filled out or executed in Tony’s and Cleo’s case, and Tony cannot recall
any discussions whatsoever between him and Cleo regarding the issue of what to do with
unused, frozen eggs. As a result, neither the clinic nor a court would have any means by
which to discern the former couple’s intentions at the time they initiated IVF.

Tony hires your law firm to advise him on his rights, and to find a way for him to
have the four frozen embryos destroyed. After discussions with Tony, the partner
assigned to the case discovers that there is a Nirvana state statute which extensively
regulates infertility clinics. One of the provisions in this statute states the following:

“In the event that a dispute arises between that person providing the eggs and that
person providing the sperm regarding the disposition of frozen, fertilized eggs,
and that dispute cannot be resolved by reference either to a written or oral contract
or by clear and convincing evidence of the parties’ intentions at the time the eggs
were fertilized, then the fertilized eggs in question shall be destroyed, unless the
egg donor desires to-have the fertilized egg implanted in her womb in an attempt
to become pregnant, in which case such a-decision on the part of the egg donor
shall be controlling.” (Italics added)

The legislative history offers three rationales for the provision, rationales which
the state claims “carefully balance the competing interests involved.” First, the state
maintains that the provision serves the state’s “abiding interest in promoting life” by
permitting women to chose to attempt a pregnancy using their fertilized eggs in the
absence of an agreement between the parties and in the face of the male sperm donor’s
objections. Second, the state claims that the provision recognizes the fact that women,
for both biological and sociological reasons, are far more likely to be impacted by
decisions regarding reproduction, and that it is therefore appropriate, absent an agreement
between the parties, to resolve any dispute regarding the disposition of eggs in favor of
the woman. Finally, the state claims that where the woman does not wish to be implanted
with the eggs in question, a rule that the eggs should be destroyed absent an agreement
between the parties serves the state’s interest in discouraging commerce in frozen
embryos - commerce which, according to the state, both “debases the value in human
life” and may lead to a wide range of custody disputes that are ultimately harmful to
children produced through the IVF process.

You are an associate at the law firm Tony has hired. The partner in charge of the
case asks you to write a brief memo on the following two questions:

1) Can the Nirvana provision be challenged as a case of gender discrimination, in

violation of Tony’s rights under the Equal Protection Clause of the Fourteenth
Amendment?
2) Does the Nirvana provision violate Tony’s rights under the “substantive”
prong of the Due Process Clause of the Fourteenth Amendment?

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 In answering both questions, please discuss both the strengths and weaknesses of
these potential constitutional challenges. Also, for purposes of answering these
questions, you may safely assume, and need not discuss, the existence of state action on
the part of Nirvana in promulgating and, where necessary, enforcing the provision.

END OF EXAMINATION

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