FORDHAM UNIVERSITY SCHOOL OF LAW

FINAL EXAMINATION IN CONSTITUTIONAL LAW

PROFESSOR HIGGINS

MAY 9, 2002

LENGTH OF EXAMINATION: 3 HOURS

DIRECTIONS

ALL MATERIALS PERMITTED EXCEPT THOSE BORROWED FROM THE LIBRARY. NO

PERSONAL COMPUTERS.

1. Answer each question fully and carefully;

2. Plan your answers before you begin to write;

3. Answer the questions in the order that they appear on the examination;

4. PLEASE WRITE LEGIBLY. WRITE ON ONLY ONE SIDE OF EACH PAGE

AND SINGLE SPACE YOUR ANSWERS UNLESS YOUR HANDWRITING
IS VERY LARGE, IN WHICH CASE YOU SHOULD DOUBLE SPACE YOUR
ANSWERS.

This examination is designed to test your legal knowledge and your ability to analyze
legal problems. Therefore, primary emphasis in grading will be given to clear identification and
discussion of the relevant issues. Your grades will also be affected by the organization,
precision, conciseness, and clarity of your answers.

The exam consists of 5 pages, including this cover sheet. The time indicated for each
question reflects its relative weight in grading. All sub-parts will be accorded equal weight,
unless otherwise indicated. The time allotted for all questions totals two hours and forty minutes,
leaving twenty minutes for reading through the exam.

GOOD LUCK!

Page 1 of 5
 Question I
(one hour)

In the wake of political controversy over President Bush’s decisions to ban all human
cloning and to prohibit research on stem cells derived from human embryos, The Omnibus
Bioethics Regulation Bill has been introduced in Congress. The bill contains three major
provisions. Title I would create the Bioethics Regulatory Commission, a special panel to be
composed of seven individuals with relevant scientific or bioethical expertise. The Bioethics
Commission would be responsible for developing federal standards for ethical research in areas
related to human genetics and guidelines for disciplining researchers who violate those standards,
and for overseeing policies for the disbursement of federal funds. The Commissioner (or
“Bioethics Czar”) and the members would be appointed by the president. In order to insulate the
Commission somewhat from political pressure, the members would be subject to removal by the
President only on the basis of permanent disability, neglect of duty, malfeasance, commission of
a felony, or conduct involving moral turpitude. The President’s decision to remove the
Commissioner or any member of the Commission would be subject to the advice and consent of
both houses of Congress.

Title II would establish a moratorium on federally-funded research related to cloning

techniques. It not only would restrict researchers from using federal funds directly in cloning
research, it would also forbid any researcher receiving federal funds from participating in
privately-funded cloning research. It further would prohibit the sharing of information derived
from federally-funded research with other researchers involved in cloning-related projects unless
and until the government-funded study is published.

Title III, inserted into the bill as a result of pressure from pro-life groups, would provide
for the protection of “embryonic life.” Specifically, Title III(A) states that “no embryo created in
vitro for any purpose may be deliberately destroyed.” Instead of making the deliberate
destruction of an embryo a federal crime, the bill would require that states include the destruction
of an embryo within the definition of murder under state statutes and that state law enforcement
treat “embryo murder” equally with other types of murder under state law. To prevent the
indefinite warehousing of embryos in response to part (A), Title III(B) would also provide for the
“adoption” of unwanted embryos. It states that “after 5 years, the rights of the egg and sperm
donor shall be terminated and the embryo shall be made available for adoption and
implantation.” It would further require that states include available embryos within any existing
state system for adoption on the same basis as full-term children.

You are employed as staff counsel to the Senate Judiciary Committee. The Committee
Chair (your real boss) has asked you for a memorandum addressing any and all constitutional
issues raised by the bill. You should discuss with respect to each provision: (a.) whether it would
be constitutionally valid; (b.) on what ground or grounds, and by what arguments might it be
challenged; (c.) how those challenges might be met and answered; and (d.) how you would
expect the Supreme Court to rule on the various challenges.

Page 2 of 5
 Question II
(one hour)

In response to a number of incidents of racist, sexist and homophobic violence on the

campus of the West Carolina State law school over the last several years, the number of
applications from racial and sexual minorities, and from women has declined dramatically. In
order to address both the problem of bias-motivated violence and the resulting decline in
diversity in the student body, the legislature of West Carolina passes the following statute:

The Diverse and Peaceful Campuses Act

I. Legislative Findings:

a. Multiple incidents of bias-motivated violence over a number of years has resulted in an

increasingly less diverse applicant pool and therefore a less diverse student body at West
Carolina State Law school;

b. The decline in diversity contributes to the isolation of members of racial and sexual
minority groups and of women, compromising their ability to learn and succeed in law
school and enhancing their vulnerability to further violence;

c. As a result of bias-motivated violence, members of minority groups and women are

denied an equal right to a state-supported legal education;

d. The climate of bias on campus and the resulting decline in diversity undermines the
state’s purpose of increasing the intellectual vitality of education, scholarship, service,
and community life on campus;

e. The climate of bias on campus and the resulting decline in diversity undermines the
state’s purpose of providing excellent legal education to members of diverse communities
in order to promote the accessibility of legal counsel to those communities.

f. A strong affirmative action policy will not only serve to increase diversity but will
serve to communicate to members of minority groups and women that they are welcome
members of the law school community.

II. Admissions Policy:

The Admissions committee of the West Carolina State law school shall review and score
all applications according to the following list of non-academic criteria: membership in
under-represented racial group (20 points); membership in under-represented group based
on sexual identity (10 points); under-represented gender (10 points); athletic skills (15
points); under-represented geographical area (5 points); socioeconomic status (20 points);

Page 3 of 5
 alumni relationship (15 points); leadership and service skills (5 points). The applicant’s
total score (out of a possible 100 points) based on non-academic criteria shall be weighted
no less than one-third of the total score, including both academic and non-academic
criteria.

Applicants with the highest overall combined scores shall be admitted until the entering
class is filled. However, if the above-specified system results in an under-representation
of minorities relative to the applicant pool, the law school admissions committee shall
have the discretion to revisit the applications of the highest ranking minority candidates
who were not initially admitted.

Question IIA: The Supreme Court has agreed to hear a challenge to the West Carolina statute.
The plaintiffs, a group white, male, and/or heterosexual students denied admission to the law
school, alleged that the affirmative action policy violated their rights under the 14th Amendment
of the United States Constitution by denying them equal protection based on their race, gender,
or sexual identity. The plaintiffs prevailed in federal district court and the Court of Appeals
affirmed. You are a law clerk to a newly-appointed Supreme Court justice who asks you to write
a memorandum discussing the constitutional issues raised by the statute. She is obviously
interested in hearing the arguments for and against the constitutionality of the statute but also in
your opinion about how the Court should rule in this case.

Question IIB: Assume that the Supreme Court reverses. Responding to West Carolina’s policy
and similar policies in several other states, Congress passes and the President signs the Sexual
Privacy in Admissions Act. The statute includes the finding that “one’s sexual orientation is a
matter of personal privacy; individuals should not be required or encouraged to disclose such
information for the purpose of seeking admission to higher education programs.” The statute
prohibits colleges and universities, whether state or private, from inquiring about or taking into
account the candidate’s sexual orientation. Is this statute constitutional?

Page 4 of 5
 Question III:
(forty minutes)

Consider the following quotation from Professor Christopher Eisgruber’s new book,
Constitutional Self-Government:

The United States Supreme Court intervenes in many political controversies. Abortion, gay rights,
term limits, legislative apportionment, affirmative action, gun control, and school prayer have all found
their way onto the Court’s recent docket. Most scholars and judges assume that the Court’s power is
justifiable (if at all) on the basis of its special legal expertise, expertise that is essential to making sense
of the Constitution’s most controversial passages. That (according to the conventional view) is why
we permit the Court, a body of nine unelected judges, to interpret the Constitution in a way that is
binding on legislatures.

I suggest a different way to reconcile the Supreme Court’s prominent political role with democratic
ideals. . . . I argue that we should regard the Constitution’s abstract provisions not as coded messages
from the past which deprive Americans of the power to govern themselves, but as invitations which
call upon Americans to exercise their own best judgement about moral and political principles. I treat
judicial review in the same spirit. I deny that judicial review interferes with democratic decision-
making. Instead, I maintain that the Supreme Court should be understood as a kind of representative
institution well-shaped to speak on behalf of the people about questions of moral and political
principle. What distinguishes the justices from the people’s other representatives is their life tenure
and their consequent disinterestedness, not their legal acumen.1

What do you think of Eisgruber’s resolution of the problem of judicial review in a democracy –
that the Supreme Court itself should be viewed as a representative institution? Is it plausible to
think of the Court in this way? Does the Supreme Court view its own role as representative of
the People? Please comment. You should explain not only your view but the reasoning behind
it, making specific references to Supreme Court opinions that we have read and discussed in this
course.

END OF EXAMINATION.

1
Italics added.

Page 5 of 5