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CREIGHTON UNIVERSITY SCHOOL OF LAW
CONSTITUTIONAL LAW SPRING SEMESTER EXAMINATION
Professor Fenner Tuesday, April 25, 2000
PART I Page 1 of 5
INSTRUCTIONS: THIS IS A CLOSED BOOK EXAMINATION. BOOKS, STUDY NOTES, OUTLINES, AND ANY OTHER MATERIALS ARE NOT PERMITTED IN THE EXAMINATION ROOM. PLACE THE LAST THREE DIGITS OF YOUR EXAM NUMBER, SECTION, PROFESSOR'S NAME, AND COURSE TITLE ON EACH ANSWER BOOK. IF YOU USE MORE THAN ONE BOOK, NUMBER THEM 1 OF 2, 2 OF 2, ETC.
PART I CONSISTS OF THREE (3) QUESTIONS.
READ EACH QUESTION CAREFULLY, AND BE SURE THAT YOU ANSWER THE QUESTION ASKED.
DO NOT GET STUCK ON ONE QUESTION AT THE EXPENSE OF OTHERS. DO NOT GET STUCK ON ONE PART OF THE ANALYSIS OF ONE QUESTION AT THE EXPENSE OF OTHER PARTS.
UNLESS SPECIFICALLY ASKED TO DO SO, DO NOT CONFINE YOUR ANSWER TO ONE ISSUE OR TO ONE PART OF ONE ISSUE JUST BECAUSE YOU BELIEVE RESOLUTION OF THAT POINT MIGHT BE DISPOSITIVE IN ACTUAL LITIGATION.
AVOID RELYING ON CONCLUSORY STATEMENTS. UNLESS OTHERWISE STATED, I AM LOOKING FOR ANALYSIS OF THE LAW AND THE FACTS. FOLLOW THROUGH ON YOUR ARGUMENTS, ROOTING THEM IN THE FACTS GIVEN AND THE RELEVANT PRINCIPLES OF CONSTITUTIONAL LAW.
Professor Fenner Tuesday, April 25, 2000
PART I Page 2 of 5
QUESTION NO. 1: (Suggested Time, 15 Minutes)
Limit your answer to this question to no more than one page in your blue book, two pages if you write on every other line.
Briefly describe the test, under the Equal Protection Clause of the Fourteenth Amendment, for gender based discrimination. What is the test? In addition, in the time and space given, discuss or describe why it is that that is the test.
You are given plenty of time to answer this question, and not much space, so you might want think about your answer, perhaps even make some notes, before you begin using up your one page (two, if writing on every other line).
QUESTION NO. 2: (Suggested Time, 30 Minutes)
Waste Management Holdings (hereinafter “WMH”) has a contract with a landfill in Illinois. The landfill is owned and operated by Monroe County, Illinois. The contract is a five- year contract, with four years left—that is, WMH and Monroe County are one year into the contract. The contract allows WMH to dump a certain tonnage of waste in the Monroe County landfill each year of the contract, and allows them to dump it at a specified cost to WMH. The tonnage and the cost go up each year of the contract. WMH dumps waste collected from the City of St. Louis, Missouri.
The State of Illinois has passed a statute (hereinafter “the Act”) regarding waste disposal within the state. The Act states that its purpose is “to provide for the health and safety of the citizens of the State of Illinois…and to promote the general health and welfare by providing for adequate [waste] disposal services.” The Act restricts the amount of out-of-state waste that may be disposed of within Illinois by any single waste disposal company. (There are provisions forbidding a company from breaking up into a number of companies, or taking similar actions, as a way to get around the Act.) The amount of out-of-state waste the Act allows any one waste disposal company to bring into and dispose of in Illinois is approximately one-half of the amount allowed under WHM’s contract with Monroe County.
You are a young attorney with the Chicago, Illinois law firm of Latham & Watkins. Latham & Watkins represents WHM. WHM wants to challenge the Act. The preliminary thinking of the senior partner handling the case is that the Act may be unconstitutional as violative of the Contracts Clause and the dormant Commerce Clause. She has a meeting with the client later today and she has asked you to give her a quick memorandum on the Contracts Clause aspects of this matter. (Someone else is doing the dormant Commerce Clause analysis and, no, you cannot trade assignments.) She wants your preliminary opinion as to whether you have a good case under the Contracts Clause, and why.
Professor Fenner Tuesday, April 25, 2000
PART I Page 4 of 5
QUESTION NO. 3: (continued)
The principal was not at the school board meeting. The members of the board had no preexisting special knowledge of the affair—nothing other than what they had heard on the street, read in the paper, and seen on TV; nothing other than what everyone else had heard and seen.
Ms. Spangler did attend the meeting. The Board called on her to speak, if she wanted to be heard. She did speak. She was unable to tell the members of the board why she had been fired, never having been told herself. She did tell them what she had told you about her feeling regarding why she may have been fired. The Board thanked her for coming and heard from everyone else who wished to be heard on the issue.
You attended the Board meeting also. You asked to speak. The Chairman of the School Board asked you the following question: “Are you speaking for yourself, as a concerned citizen, or are you speaking as Ms. Spangler’s lawyer?” You responded: “I am here as Ms. Spangler’s lawyer and I wish to address the Board on her behalf. I will not take…” At this point, the Chairman of the Board interrupted you and stated: “I am sorry, but the rules of procedure for our school board meetings require that people speak for themselves. They don’t allow for attorneys to speak for others.” He cut you off and would not let you go on.
At the conclusion of the meeting, they told Ms. Spangler that based on what they knew about the matter, they had no basis on which to overturn the principal’s decision and that they felt that they had no choice but to affirm what he had done.
You looked at the School Board’s rules of procedure and found that what the Chairman had said about attorneys speaking on behalf of others is essentially correct. I say “essentially” correct because there are exceptions for attorneys who attend to speak on behalf of others who are not persons—corporations, and the like. It is just that attorneys may not appear on behalf of individuals who can speak for themselves.
Ms. Spangler is classified as a staff employee of the school district, that is, an employee other than a teacher or administrator. Your research of Nebraska State law has shown that a person in Ms. Spangler’s position can be fired “for any of the reasons set forth in the employment contract, incompetence, neglect of duty, unprofessional conduct, insubordination, immorality, or physical or mental incompetence.”
Professor Fenner Tuesday, April 25, 2000
PART I Page 5 of 5
QUESTION NO. 3: (continued)
She wants her job back. You are considering filing an action under 42 U.S.C. § 1983. In pertinent part, § 1983 reads as follows: “Every person who, under color of [state law] subjects…any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceedings for redress.” Ms. Spangler would like to be reinstated in her former job and given back pay for the time between when she was fired and when she gets the job back.
Discuss her chance of winning under this statute using due process as the constitutional right deprived. (This is not a First Amendment question. Do not concern yourself with the First Amendment, but just with the Due Process Clause of the Fourteenth Amendment, without incorporating any of the Bill of Rights into the clause.)
Answer this question as fully as possible in the time you are given. Do not spend too much time on this question at the expense of other questions. If there are other things you need to know, or would like to know, specify what they are and why you want to know, that is, what they are and how the knowledge would affect the outcome.
Professor Fenner Tuesday, April 25, 2000
PART II Page 2 of 5
QUESTION NO. 1: (Suggested Time, 40 Minutes)
This question involves a claim of race discrimination brought against Fulton County, Georgia and the Sheriff of Fulton County, Sheriff Jacquelyn H. Barrett (collectively, “Defendants”). The plaintiff, Corporal Guerry “Bubba” Moore, is an employee of the Sheriff’s Department—a Deputy Sheriff with the rank of Corporal. He applied for a promotion in rank. He did not receive the promotion. He alleges that he did not receive the promotion because of his race. Plaintiff is a Caucasian male. James NeSmith received the promotion instead of Plaintiff. James NeSmith is an African American male.
Promotion of law enforcement personnel (as opposed to staff employees such as clerical and janitorial employees) within the Sheriff’s Department in Fulton County is determined by a variety of factors. The official guidelines, that is, the regulations imposed on the Sheriff’s Department by County Ordinance, provide that promotion shall be based on four factors. Three of the factors are seniority, score on the promotions exam, and service record within the Department. The fourth factor has to do with employees of the Department who have had law enforcement experience outside the Department, and it gives them certain credits for other law enforcement experience.
In Fulton County, seniority is based on length of service figured according to the calendar year in which each employee was hired. All employees hired in any one calendar year have the same seniority. Upon being hired, an employee’s seniority goes back to January 1st^ of the year in which he or she was hired, so, seniority wise, there is no benefit to being hired early in the year, as opposed to late in the year. Stated yet one more way, at the end of 1995, everyone hired in the year 1991 has five years seniority (1991, 1992, 1993, 1994, and 1995).
There was an official affirmative action plan in place in Fulton County. It had been imposed legislatively by the Fulton County Board (the legislative branch of Fulton County government). On the subject of promotions, that plan had provided that points would be added onto the promotion-exam score for members of certain specified racial groups, including African Americans. Additionally, the plan provided for a review of the service record of the members of these same racial groups, including African Americans, when any member of the group applied for promotion. This review was to be conducted with an eye toward correcting things that might have appeared in their record because of hostility to them on account of their race. That plan was enacted in 1982. It was repealed in 1992.
Professor Fenner Tuesday, April 25, 2000
PART II Page 3 of 5
QUESTION NO. 1: (continued)
Plaintiff and NeSmith were both hired in 1989. In 1995, each applied for the same promotion. NeSmith got the promotion. Plaintiff did not get the promotion. Plaintiff’s score on the promotions exam was somewhat higher than NeSmith’s. NeSmith had a better service record. Plaintiff argues that the difference in race was the key to the difference in the two men’s service record, and that the difference in their service record made the difference in the promotion. A look at the two men’s service records shows that NeSmith had received more commendations than Plaintiff had received, and Plaintiff had been disciplined more often than NeSmith. Plaintiff presented evidence that the Sheriff and the Sheriff’s Department generally were so afraid of being seen as racist that they were quicker to give commendations to African American deputies than to Caucasian deputies. Out of this same fear, they were quicker to discipline Caucasian deputies than African American deputies.
The evidence also reveals that forty percent of the law enforcement personnel employed by Fulton County are African Americans, fifty percent are Caucasian, and ten percent are “Other.”
If you compare the personnel files for all of the African Americans and for all of the Caucasians employed as law enforcement personnel by the Fulton County Sheriff’s Department—not just the records of Plaintiff and NeSmith—you find the following: Both in raw numbers and after adjusting the numbers for the relative number of Caucasians and African Americans employed by the Sheriff’s Department, the files of the African American employees showed more commendations and fewer disciplinary entries.
Plaintiff is a man who generally has a chip on his shoulder. He is a good Deputy Sheriff and seems to treat all members of the public fairly, but he is the kind of person who generally believes that others get all of the breaks, and he gets none of them. It is never his own fault.
Plaintiff asserts that the actions of the Fulton County Sheriff’s Department and the Sheriff herself violated the Equal Protection Clause of the United States Constitution. Discuss the resolution of this case based on the record provided above. You are the federal judge before whom this case has been filed. Based on the information provided in this question, how would you resolve the equal protection issue? And, of course, why? Answer this question as fully as you can in the time in which you have to do it.
Professor Fenner Tuesday, April 25, 2000
PART II Page 5 of 5
The caesarian section was preformed. Mother and child survived. Mr. Doe has sued the hospital. She alleges that this was a violation of her rights under the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
Decide whether Mrs. Doe recovers on her 1983 claim that the hospital violated her due process rights. Do not concern yourself with procedural due process. Assume that she had not raised a procedural due process claim, but just a substantive due process claim.
