constitutional law ii — professor moskovitz

CONSTITUTIONAL LAW II — Professor Moskovitz

Syllabus – Spring, 2012

“What I call my philosophy of teaching is in fact a philosophy of learning. It comes out of Plato, modified. Before true learning can occur, I believe, there must be in the student’s heart a certain yearning for the truth, a certain fire. A true student burns to know. In the teacher she recognizes, or apprehends, the one who has come closer than herself to the truth. So much does she desire the truth embodied in the teacher that she is prepared to burn her old self up to attain it. For his part, the teacher recognizes and encourages the fire in the student and responds to it by burning with an intenser light. Thus the two of them rise to a higher realm. So to speak.”

J.M. Coetzee, "Summertime", p. 163 Class Hours: Mondays & Wednesdays - 10:15 -11:30 am Professor’s Phone: 510-384-0354 Email: [email protected] Office: Room 2325 Office Hours: Mondays & Wednesdays, 9-10 a.m. Faculty Assistant: Pat Paulson, [email protected], 415-442-6642 Final Exam: All essay questions.

Assigned Text: Chemerinsky, “Constitutional Law” (Third Edition)

Week Dates Topic Assigned Pages 1 Jan. 9 Equal Protection 717-748; Problem 1

2 Jan. 16 Equal Protection 748-801; Problem 2 3 Jan. 23 Equal Protection 833-872 4 Jan. 30 Equal Protection 815-833; 878-917; Problems 4A-4B 5 Feb. 6 Freedom of Speech 1205-1254; Problem 5

6 Feb. 13 Freedom of Speech 1254-1321; Problem 6A & 6B 7 Feb. 20 Freedom of Speech 1342-1375; Problem 7 8 Feb. 27 Freedom of Speech 1375-1428; Problems 8A & 8B 9 March 5 Freedom of Speech 1428-1461, 1494-1513; Problem 9A

mailto:[email protected]

mailto:[email protected]

10 March 19 Freedom of Speech 1527-1562; Problems 10A & 10B 11 March 26 Freedom of Speech 1576-1625; Problem 11 12 April 2 Religion Clauses 1665-1702; Problem 12 13 April 19 Religion Clauses 1703-1758; Problem 13 14 April 26 Religion Clauses 1758-1807; Problem 14 Policy re Preparation: Attendance and preparation are required. If you are unprepared, you must sign in before class. No excuse is necessary. However, if you sign in or miss class more than 2 times (or combination of both), your grade will be lowered. Course Objectives: To learn how to advise clients and litigate real-world problems in Constitutional Law, as well as how to do well on Constitutional Law essay questions on law school exams and bar exams. Grades: As long as you participate in class discussion and are prepared, your grade will not be affected by what you say or how you say it. Your grade will be determined by your performance on the final exam, which will consist only of essay questions. Laptop Policy: Laptops are not permitted in class. You may take notes with pen and paper. Accommodating Disability: If you have a disability that requires accommodation, please see the Disability Services Coordinator in Room 3339.


PROBLEM 1 – THE EQUAL PROTECTION CLAUSE (for Week 1)

To: My law clerk From: Mr. Justice Solomon King Date: August 20, 1870 As you know, Congress recently enacted the 14th Amendment to the United States Constitution, and the states ratified it. The Court now has before it several cases in which the petitioner claims that a state violated his or her right to “equal protection of the laws.” This provision has never before been interpreted by any court. How should I go about analyzing these cases? To tell you the truth, I don’t even know where to start. Help! New York v. Speed New York City has an ordinance that says, “It shall be a misdemeanor to ride a horse at a gallop through any New York City street.” Sam Speed was convicted of violating this law. He argues that he is being treated “unequally,” because the ordinance does not punish people who ride horses at a trot or a walk. New York State has a statute that says, “It shall be a misdemeanor to fish for trout during the months of November through April.” Speed was convicted of violating that law too. He argues that he is being treated “unequally,” because the statute does not punish people who fish for trout from May through October, and does not punish people who fish for perch at all. The New York Legislature heard testimony that trout spawn from November through April, but Speed has an expert ready to testify that while trout spawn from December through April, they do not spawn in November. New York State also has a statute that says, “It shall be a misdemeanor to fish for trout without a valid fishing license. No person under the age of 18 shall be issued a license.” Speed was convicted of violating that law too. He applied for a license, but was turned down because he was only 17. He argues that he is being treated “unequally,” because older people were allowed to obtain a license. Incidentally, I (Judge Solomon) am an avid fisherman, and I would love to be able to fish in New York lakes in November. Can I take that into account in deciding this case? On the other hand, my wife is an “animal rights” activist who believes it is immoral to tear up the mouths of little fishies with hooks covered by fake food. Should this position influence my decision?

South Carolina v. Freeman In 1869, South Carolina enacted a statute that says, “The State Government of South Carolina shall not hire any former slave for any state job.” Frank Freeman, a former slave, applied for a job as a gardener at the state capitol, but was rejected because of this statute. Maryland v. Black & White Maryland has a statute that says, “It shall be a misdemeanor for any African-American to use a public drinking fountain which has been labeled ‘for whites only’ and for any white person to use a public drinking fountain which has been labeled ‘“for colored only.’” Betty Black is an African-American who was convicted of violating this law for drinking at a “whites only” drinking fountain at the state capitol. Wanda White is a white woman who was convicted for drinking at a “colored only” drinking fountain at the capitol. New Hampshire v. Peacenik New Hampshire has a statute that subjects every male between the ages of 18 and 35 to being drafted into the state militia in times of emergency. Perry Peacenik is a 22-year old male who claims that the statute treats him “unequally.”

PROBLEM 2 – THE EQUAL PROTECTION CLAUSE (for Week 2)

To: My law clerk From: Minnie Mart, Cow County Attorney Our nine-member County Board of Supervisors has just tentatively enacted (by a 6-3 vote) an ordinance that provides as follows:

The County Adoption Agency shall not place children of one race with adoptive parents of another race.

At the Board hearing that led to this ordinance, Polly Parrot, the Director of the County Adoption Agency supported the ordinance. She testified that she had conducted a study that showed that black children placed with white adoptive parents had more problems in school than black children placed with black adoptive parents. She also said that there were twice as many black children as white children available for adoption and half as many black adoptive parents as white adoptive parents. Those children not adopted were placed in foster homes. K.C. Jones, head of the local NAACP, opposed the ordinance. She testified that Ms. Parrot was a racist, and that “Parrot once told me that race-mixing was a bad idea.” Board Member Able said that she was voting for the ordinance because, “I think people will be happier with their own kind.” Board Member Baker said that he would vote against the ordinance because, “It will result in more black kids placed in foster homes for many years, instead of being adopted.” Board Member Charles said nothing, but voted for the ordinance. A couple of years ago he wrote a letter to the local newspaper that said, “Government should stop giving so many free handouts to lazy blacks.” None of the other Board members spoke at the meeting. The NAACP has threatened to file suit if the Board enacts the ordinance. The Board asked me to give them a legal opinion on the constitutionality of the ordinance before they take a final vote on it. Please give me your opinion as to whether the courts will uphold it or strike it down. The Board also asked me to advise them on the legality of an alternative ordinance, which would provide: “The County Adoption Agency must allow persons who are considering adoption to see the child to be adopted before the adoption is finalized.” Please give me your view as to the constitutionality of this ordinance.


PROBLEM 4A – THE EQUAL PROTECTION CLAUSE (for Week 4)

To: My law clerk From: Harry Aip, Esq. Our firm represents the Berkeley School Board. The Board has asked us to give our opinion regarding some issues now before the Board. Issue #1: The Board proposes to break up Berkeley High School into three separate high schools: one for girls only, one for boys only, and one mixed. Students may select which school to attend.

The Board held hearings at which students, parents, and experts testified that

many students learn better in a same-sex school. Would this program violate the Equal Protection Clause?

Issue #2: Tessie Tackle, a 9th grader at Berkeley High, wants to play on the school football team. She is big, tough, and experienced. But Coach Moach has a firm rule: no girls. He said, “Girls can get hurt more than boys, and having a girl on the team is bad for the boys’ morale. I had a girl wide receiver in a practice scrimmage once. Some of the boys didn’t act any different, but others were weird. Some left their positions to try to knock her down, and some left their positions to protect her. I think she used to be the girlfriend of one of the boys and then started going out with another player. The boys forget that the point of playing is to work together to score touchdowns, not to deal with adolescent sex. I can’t have a winning season with that kind of distraction. And the boys talk about the game and learn stuff in the locker room after games and scrimmages, and a girl can’t be in the same locker room.”

Tessie has threatened to sue the School Board, claiming a denial of Equal

Protection. What are her chances of winning?


PROBLEM 4B – THE EQUAL PROTECTION CLAUSE (for Week 4)

To: My law clerk From: Bobby Pinn, Chief Counsel, State Insurance Fund As you know, our company just received an exclusive contract from the State to provide low-cost insurance to state employees. The contract requires us to keep premiums as low as possible by reducing administrative costs, and to keep them “fair” among various employees. Since our profits are relatively fixed by the contract, any reduction in premiums given to one group will result in premium increases for other groups.

Our actuaries have recently done some studies, and they recommend the following policies. Please advise me as to whether these might violate the Equal Protection Clause of the 14th Amendment. 1. Older people tend to die sooner than younger people. Therefore, older people must pay higher annual premiums for a given amount of life insurance coverage than younger people. 2. Black people tend to die sooner than white people, due to sickle-cell anemia, heart disease, and other problems. Therefore, black people must pay higher annual premiums for a given amount of life insurance coverage than people who are not black. 3. Men tend to die younger than women. Therefore, men must pay higher annual premiums for a given amount of life insurance coverage than women. 4. More home burglaries are committed in “inner cities” (where the population is predominantly black) than in suburban communities. Therefore, state employees who live in inner cities must pay higher annual premiums for theft insurance than those who live in the suburbs. 5. Our health insurance policies cover pregnancy, childbirth, and related illnesses. While women generally do not incur greater health expenses than men do, women aged 22 to 28 do incur greater health expenses, because so many of them become pregnant and have babies. Therefore, women in this age bracket must pay higher health insurance premiums than other state employees. Alternatively, we might charge everyone the same premium but exclude from our list of benefits all expenses related to pregnancy, childbirth, and related illnesses. 6. Men under 30 years of age are involved in a disproportionate number of auto accidents. Therefore, these men must pay higher annual premiums for auto insurance (liability and collision) than other state employees.

If there are constitutional problems with this approach, can we accomplish pretty much the same thing by charging higher premiums to people under 30 who get traffic tickets? (Young men get many more traffic tickets than young women.) 7. The contract requires us to give a 10% discount on all premiums paid by high-ranking “executive” employees, because the state has been having difficulty attracting well-qualified executives into state government. About 80% of these executives are male. This will require a slight increase in premiums paid by other state employees, 60% of whom are female. 8. In the past, the State had relegated women employees to lower-paying and lower-status jobs (secretaries, clerks, etc.). The State has taken steps to end this discrimination, and now women are moving into the ranks of middle-management and executives. But most women are still in the lower ranks. Also, many of these women are single mothers and have to pay for child care. To deal with these historical problems, our contract requires us to give all women employees a 10% discount on all insurance premiums.

CONSTITUTIONAL LAW II – Professor Moskovitz

PROBLEM 5

To: My Law Clerk From: Don Duck, Legislative Counsel, California State Legislature Because of the war in Iraq, the California National Guard is having difficulty recruiting new soldiers – especially officers. They try to recruit on college campuses, but leftist professors and students often interfere. Therefore, several members of the Legislature have proposed the following bill: §1. No college professor may criticize the California National Guard where such criticism is likely to discourage students from joining the National Guard. §2. No college professor or student may disrupt California National Guard recruiters who attempt to recruit on college campuses. §3. No college that receives state funds shall use such funds to offer any course in which the professor criticizes the California National Guard. Please advise me regarding the constitutionality of each of these provisions.


PROBLEM 6A To: My Law Clerk From: Don Duck, Legislative Counsel, California State Legislature Oh – there’s one more bill that’s been proposed: §4. Any state funding for any university shall be terminated, where the university refuses to permit California National Guard recruiters to recruit on that university’s campus. Is this one constitutional?


PROBLEM 6B

To: My law clerk From: Yul Gofar, Esq. I represent a group of people who work at the State University law library. They are unhappy with their working conditions and salaries. During their breaks and lunch hours, they began picketing in the hall in front of the glass-door entrance to the library, carrying signs saying things like, “You don’t pay us enough to deal with rude and unruly law students!” They have also been chanting, “All we do is shelve your books. All we get are dirty looks!” They have been handing out leaflets about their gripes to people entering the library and speaking to them about the dispute. Between the number of pickets (usually about 6, but sometimes as many as 10) and the number of people getting leaflets and talking to the pickets, this sometimes causes some congestion of people in front of the library. The University has filed suit against them. The court issued an injunction against them that says: “Defendants are hereby enjoined from engaging in the following activities in the hallway in front of State University law library: (1) making any noise, (2) maintaining more than four pickets at any one time, and (3) handing out leaflets. What should I advise my clients to do?

CONSTITUTIONAL LAW II — Professor Moskovitz PROBLEM 7

To: My law clerk From: Frieda Frost, City Attorney, City of St. Paul 1. Some white racists have been getting up on a bench in a city park and urging people to “do something” to get minorities (African-Americans, Hispanics, Jews, Asians) run out of town. Many people gather around to listen to these racists. Some are white racists themselves, and some are minority group members who heckle and argue with the speakers. So far, no violence has resulted, but our police chief is of the opinion that it is just a matter of time before someone is hurt. Please draft an ordinance which will deal with this problem and which will hold up in court. 2. Well, the Supreme Court just ruled against us in R.A.V. v. City of St. Paul [on page 1179]. Many people in the city are very angry about this decision, and the City Council has directed me to redraft the ordinance so it will be upheld by the Supreme Court.

Please read the case carefully (and the other related cases) and redraft the ordinance so it does the job but will get the approval of at least 5 Supreme Court justices (preferably more, just to be safe).

CONSTITUTIONAL LAW II — Professor Moskovitz PROBLEM 8

To: My law clerk From: Dewey Suem, City Attorney I need your advice re some issues that have recently landed in my lap. 1. In 1983, an ordinance was introduced in the Minneapolis city council that provided various civil sanctions (such as injunctions) against the sale of pornography. The purpose section of the ordinance stated that:

The council finds that pornography is central in creating and maintaining

the civil inequality of the sexes. Pornography is a systematic practice of exploitation and subordination based on sex which differentially harms women. The bigotry and contempt it promotes, with the acts of aggression it fosters, harm women’s opportunities for equality of rights in employment, education, property rights, public accommodations and public services; create public harassment and private denigration; promote injury and degradation such as rape, battery and prostitution and inhibit just enforcement of laws against these acts; contribute significantly to restricting women from full exercise of citizenship and participation in public life, including in neighborhoods; damage relations between the sexes; and undermine women’s equal exercise of rights to speech and action guaranteed to all citizens under the Constitutions and laws of the United States and the State of Minnesota. Based on these findings, the city’s civil rights ordinance was to be amended to

make the sale of pornography a violation of the civil rights of women. Pornography was defined as follows:

Pornography is the sexually explicit subordination of women, graphically

depicted, whether in pictures or in words, that also includes one or more of the following:

(i) women are presented dehumanized as sexual objects, things or commodities; or (ii) women are presented as sexual objects who enjoy pain or humiliation; or (iii) women are presented as sexual objects who experience sexual pleasure in being raped; or (iv) women are presented as sexual objects tied up or cut up or mutilated or bruised or physically hurt; or

(v) women are presented in postures of sexual submission; or (vi) women’s body parts – including but not limited to vaginas, breasts, and buttocks – are exhibited, such that women are reduced to those parts; or (vii) women are presented as whores by nature; or (viii) women are presented being penetrated by objects or animals; or (ix) women are presented in scenarios of degradation, injury, abasement, torture, shown as filthy or inferior, bleeding, bruised, or hurt in a context that makes these conditions sexual.

Please advise me as to whether it is constitutional. If it isn’t, how we redraft it to give it a better chance of being upheld in court? 2. A group of African-American citizens is concerned about a movie theater (“Adolph’s”) located a block away from a neighborhood that is predominantly African-American. Adolph’s shows many films that are racist, and they attract an audience of “punks, skinheads, neo-Nazis, and assorted white trash.” The black citizens consider these films very offensive, and they tend to attract people who are hostile to blacks and might attack them or their property nearby. They want me to draft an ordinance that will close Adolph’s down or at least get Adolph’s out of that neighborhood. Please put something together which will hold up in court. 3. A local group calling itself “The Sexual Liberation League” has been walking around the downtown area in the nude and carrying signs with photos showing people having sex and saying “Don’t be ashamed of you bodies. Don’t be ashamed of sex.” May the Council enact an ordinance putting a stop to this that the courts will not strike down?

CONSTITUTIONAL LAW II — Professor Moskovitz PROBLEM 9A

To: My law clerk From: Penny Loafer, City Attorney Our City Council has been getting a lot of pressure from anti-smoking groups to “do something” to cut down on the sales of cigarettes. Councilmember Burns has asked our office to draft an ordinance that would do the following:

Prohibit cigarette advertising in any local newspaper, radio station, cable TV station, or billboards.

If the Council adopts an ordinance along these lines, it is virtually certain that it will be challenged in court. What are our chances of winning? Is there any way to draft it that might increase our chances of winning?

CONSTITUTIONAL LAW II — Professor Moskovitz PROBLEM 9B

To: My law clerk From: Dewey Suem, City Attorney I need your advice re some issues that have recently landed in my lap.

City Councilmember Lisa Carr has been involved in a dispute with a citizen, Ron Rabble. Rabble is a conservative citizen who calls himself a “watchdog for the taxpayers” and frequently criticizes city government. On a local radio station, he told the audience:

Carr is a crook and a whore. She leased a car with a City credit card to go to a motel with the Mayor — a married man! The motel clerk told me he saw them go upstairs together. Carr would sleep with Saddam Hussein if it would help her career. Her feminist buddy, Polly Peachem, probably reserved a room for them.

Both Carr and Peachem want to sue Rabble for defamation. They say that in fact, Carr went to an upstairs conference room in the motel with the Mayor and several other government officials for a City-sponsored conference on how to reduce taxes, and no sex was involved. Peachem did not reserve a room for anyone. Carr is a happily married woman who has never committed adultery. They said that Rabble hates Carr because Carr has proposed that the Council adopt an “anti-pornography” ordinance that Peachem drafted for an organization she belongs to, “Women Against Sexism.” Please advise me as to whether they have a decent chance of winning.

CONSTITUTIONAL LAW II — Professor Moskovitz PROBLEM 9C

To: My law clerk From: Connie Law, City Attorney The recent election has left our city awash in a sea of unsightly political signs stuck onto buildings. Some of these signs are laced with profanity, dirty pictures, and very nasty false statements about opposing candidates. Some campaign workers rip down their opponent’s signs, and when caught in the act by opponents, this has led to some fist-fights on occasion. We’ve asked candidates not to post signs, or at least to take them down after the elections, but most have done this only haphazardly, at best. It costs property owners and the City money to get them removed. The City Council has directed me to draft an ordinance that addresses these problems, so we can avoid them during the next election. Here is my first draft. Please advise me as to whether any or all of this would survive a First Amendment challenge. If you can think of any changes that might give it a better chance of being upheld in court, please draft the language you think would do the job and explain why.

ORDINANCE #123: SIGNS Section 1: No person shall affix any inappropriate political sign to any privately-owned building on a wall that faces the street. “Inappropriate” means a sign that includes words or pictures that use profanity, nudity, or falsity, or might provoke a violent reaction. Section 2: Any violation of this ordinance shall be punishable by a fine of $100.

CONSTITUTIONAL LAW II — Professor Moskovitz PROBLEM 10A

To: My law clerk From: Penny Loafer, City Attorney Our City Council has been getting a lot of pressure from anti-smoking groups to “do something” to cut down on the sales of cigarettes. Councilmember Burns has asked our office to draft an ordinance that would do the following:

Prohibit cigarette manufacturers, wholesalers, or retailers from contributing to the political campaigns of any candidate for our City Council or spending money on any initiatives or referenda relating to sale or advertising of cigarettes.

If the Council adopts an ordinance along these lines, it is virtually certain that it will be challenged in court. What are our chances of winning? Is there any way to draft it that might increase our chances of winning?

CONSTITUTIONAL LAW II — Professor Moskovitz PROBLEM 10B

To: My law clerk From: Ted E. Bayer, General Counsel, State University The Dean of our Law School has just sent me the following memo. Please help me prepare a response.

Dear Ted:

I need your legal advice on a problem that have arisen at the law school.

We have a bulletin board in our main hallway. The board has been used by

any student, faculty member, or staff member who has any kind of announcement to make. Recently, we’ve had some problems. Anti-abortion groups deface or tear down announcements put up by pro-choice groups, and vice versa, leading to bad blood between students. Some racist posters have been put up. And advertisements for bar review courses, pizza restaurants, and the like abound. It’s getting too cluttered for anyone to easily find announcements relating to law school activities. And many of the postings are scribbled and look like hell.

I asked our constitutional law professors to draft a regulation dealing with

these problems, and here is what they came up with: Postings on the law school’s bulletin board may be made only by

students, faculty, and staff of the law school. Nothing shall be posted which defames the race of any person or the religious or political beliefs of any person. Nothing shall be posted which seeks payment of money. All postings shall be neatly typewritten or printed and shall contain no profanity. Law students are a litigious lot, and I’m afraid some will challenge this

regulation via a lawsuit against us. Is it valid? If there are problems with it, please redraft it to make it more likely to stand up in court.

CONSTITUTIONAL LAW II – Professor Moskovitz PROBLEM 11

To: My law clerk From: Ted E. Bayer, General Counsel, State University The Dean of our Law School has just sent me another memo. Please help me prepare a response.

Dear Ted: We try to train our students to be professionals, which requires respecting other people regardless of race, religion, sex, or sexual preference. To further this goal, I’d like to issue the following two new regulations, and I’d like your opinion regarding their constitutionality. 1. Any student who submits a course paper that demeans any person’s race, religion, sex, or sexual preference shall have his grade in that course lowered by one whole grade. 2. Membership in all law student groups that hold meetings on the law school campus must be open to all law students, regardless of race, gender, religion, political affiliation, sexual preference, or any other belief. All meetings of such groups must be open to all law students. At present, we have the following groups that hold meetings on on campus: Black Law Students Association, Women Law Students Association, Jewish Law Students Association, Republican Law Students Association, Gay Law Students Association, Lawyers’ Guild (a leftist organization), Federalist Law Students Association, Law Students Hiking Club, and Law Students’ Debate Club (where students practice debating techniques).

CONSTITUTIONAL LAW II Professor Moskovitz

PROBLEM 12

To: My law clerk From: Donna Dope, Esq. My client, Paul Pott, has been charged with violating two state statutes:

Penal Code Section 123: Any person who smokes marijuana shall be guilty of a felony. Penal Code Section 456: Any person who uses any hallucinogenic drug in any ceremony shall be guilty of a misdemeanor.

Paul told me the following:

“I belong to the Church of Mary Jane. So far, our congregation consists of me, my sister Polly, and my girlfriend, Rhoda Reefer. Polly and Rhoda believe that Mary Jane is the one true goddess. Right now, I don’t yet believe in goddesses. We all believe that meditating about world peace while we are smoking marijuana together will spread these thoughts to other people, which will bring about world peace. Rhoda and Polly pray to Mary Jane while they are doing this, but I just meditate on world peace.”

Can we beat the charges?

Constitutional Law II – Professor Moskovitz

PROBLEM 13

To: My law clerk From: Hy Preest, Esq. I represent the local school district. Paula Prince, principal of Middling Middle School, is planning the school’s annual Christmas Pageant – a two-hour affair held during normal school hours, which all students are required to attend. Included in her program are three acts she is worried about: 1. Ms. Singer’s Choral Class will present three songs: Jingle Bells, Santa Claus Is Coming To Town, and Silent Night (which refers to the “Holy Infant”, etc.). 2. The Christian Club (a student group) will put on a short play about the birth of Jesus. The school will pay for the costumes and props (as it does for all student plays), which include some fake sheep, some straw, a Jesus doll, and a cross. 3. Ms. Prince asked students to submit proposed speeches on “What Christmas Means to Me.” Becky Beck wrote about “New Video Games You Might Get For Christmas Presents.” Abdul Ahmed wrote about “”Christian Oppression of Muslims.” Freddy Falwell wrote about “Christmas Should Be About Religion, Not Presents.” Ms. Prince thought all three were well done, but she has time for only one in the Pageant. So she selected the speech to be given by lot. Freddy won. Any Establishment Clause problems? If so, what changes might our client make to minimize those problems and still get most of what the client wants?

CONSTITUTIONAL LAW II Prof. Moskovitz

PROBLEM 14A

To: My law clerk From: Oly O. Margarine, Esq, I represent Rob R. Baron (B), who owns “Baronville” — a 20-story building in Orange County containing 500 apartments above 20 retail stores, all patrolled by security guards hired by Baron. While Baron himself is homosexual, he refuses to rent any apartment to a homosexual, because Orange County is very conservative and his other tenants might move out if they know homosexuals are in the building, and they might harass or attack tenants who appeared to be homosexual. Baron also refuses to rent any apartment to any blind person, because all of the apartments are above the first floor and he fears that a blind person might be unable to find a stairway and get out of the building quickly in case of fire.

Baron has a contract with a federal agency (the U.S. Department of Housing & Urban Development) that requires Baron to rent 20 of his apartments to low-income tenants at $700 per month per apartment. The contract provides that each tenant will pay Baron rent equal to 25% of the tenant’s monthly income. If this comes to less than $700, the feds pay Baron the amount needed to bring to total to $700. Baron likes the federal guarantee of part of the rent. The federal money comes from a fund established by a Congressional statute that says that the program is intended “to provide more housing for low-income people.” Baron would like to apply his “no homosexuals” policy and “no blind” policy to these 20 apartments. He is worried, however, that some low-income homosexual or blind person might sue him to invalidate the policies, insofar as they apply to the 20 apartments. Please advise me re whether a lawsuit based on the Equal Protection Clause of the 14th Amendment would succeed.

CONSTITUTIONAL LAW II Prof. Moskovitz PROBLEM 14B

To: My law clerk From: Golda N. Bear, General Counsel, University of California I just received the following memo from the Dean of our School of Engineering:

“Dear Golda:

As you know, we have always had trouble attracting and keeping women students in our School of Engineering. Recent studies show that some women tend not to go into science or technology unless they have emotional and intellectual support from other women peers and authority figures.

Therefore, we are considering a proposal to establish a University dormitory for women engineering students only. Undergraduates would live with, eat with, study with, and “hang out” with students like themselves and with the few graduate student women who have succeeded in our school thus far, to show that women can make it in engineering.

One section of this dormitory would be set aside for black women engineering students only, because studies show that many black women students tend to feel especially isolated unless able to associate with other black women. We hope to lower the drop-out rate among these women.

No lesbian engineering students will be allowed to live in this dormitory. Some of our “straight” women students come from rather conservative communities and families, and they tend to be fearful or anxious about lesbians – especially in Berkeley, where lesbians tend to be rather outspoken. We want our students to focus on studying engineering (one of the most demanding disciplines) with a minimum of distractions. Lesbians are welcome, of course, in other University dormitories.

One of our professors flunked out of law school before becoming an engineer, so

he thinks he knows some law. He said that all or part of this dormitory proposal violates the Equal Protection Clause of the U.S. Constitution, and might be successfully challenged by non-engineering students, males, non-blacks, and/or lesbians. Is he right?

Dean Dan Dean”

Please draft a letter for me to send to the Dean in response to his question.

CONSTITUTIONAL LAW II Professor Moskovitz — Fall, 1999

PROBLEM 14C To: My law clerk From: Herb Garden, Esq. My client, Dan Dork (D), is the leader of “Stop The Census,” a group that believes that the upcoming 2000 Census is an invasion of privacy. Dork wears a T-shirt that has on its front a colored cartoon drawing of the President having sexual intercourse with the Statue of Liberty (both naked, with genitalia showing) over the words, “Big Daddy Is Screwing Your Liberty. Stop The Census.” On the back of the shirt, in large letters, is “Protect Your Privacy. Don’t Talk To Census Takers.” During the Christmas shopping season, Dork wears his T-shirt every day while standing on the sidewalk in front of Macy’s department store, in downtown San Francisco, handing out leaflets to shoppers and telling each one, “Fuck the Census-takers.” The leaflets contain only the words and picture on the T-shirt, along with the statement: “Buy this T-Shirt for $10.” Several shoppers (some with kids) have complained to the police about what Dork has been doing. Question #1: If you can believe it, our so-called “progressive” District Attorney is threatening to prosecute Dork for violating Penal Code §123, which provides: “Every person who displays in public any photograph, drawing, or other depiction of sexual conduct is guilty of a misdemeanor.” Is this statute facially invalid under the First Amendment? Question #2: The S.F. Board of Supervisors is considering enacting an ordinance prohibiting all or some aspects of what Dork is doing. Dork told me, “I don’t care what law they pass, because they can’t apply it to me. Everything I am doing is protected by the First Amendment, right? If there is something I’m doing that is not protected by the First Amendment, please tell me what it is and I’ll cut it out of my act. If you are not sure how a court might rule, let me know the odds and I’ll decide whether to take the chance.” What answer should I give him? Incidentally, for what it’s worth, a federal statute says, “Every person who refuses to give information to a United States census-taker is guilty of a misdemeanor.”

CONSTITUTIONAL LAW II Prof. Moskovitz

PROBLEM 14D

To: My law clerk From: Buck Skinn, City Attorney, City of El Paso George W. Shrub (S) is the owner of the El Paso Eskimos, our local professional baseball team. The Eskimos play at Heifer Field, a private stadium that is old and in bad shape. This causes low paid attendance and low sales of food and drinks. Shrub says he is losing money he will move the team to another city unless our City builds a new stadium for him to lease from the City at $1 a month during the baseball season (April to September). A new stadium will cost us $100 million, but our City Council thinks it will be worth it, because ballgames attract many visitors to the City, and they spend money on hotels and restaurants, and the City gets taxes on those sales. The same would be true in other cities, who have made pretty good offers to Shrub to move the Eskimos there. Shrub has some policies at Heifer Field, and he wants to keep the same policies in a new stadium, in order to be sure he makes enough money to keep the team in El Paso:

* Some of Shrub’s hot dog vendors work at fixed hot-dog stands, and other of his hot dog vendors carry large bags of hot dogs through the stadium to sell to fans. Shrub refuses to hire any “overweight” people or pregnant women as hot dog vendors. He says he is concerned that such people might trip and hurt themselves or spill mustard on fans while carrying the bags. He doesn’t want to pay workers for injuries and he doesn’t want to upset “paying customers.” * When hiring ticket takers, Shrub tries to hire as many young, “good looking” Mexican-American women as he can find. He says that this helps attract men (especially Mexican-American men) to the games. He says that it is crucial that he keep paid attendance at the games as high as possible, so he can afford to keep the team in the City.

If the City makes this deal with Shrub, I’m afraid some judge might find that we violated the Equal Protection Clause of the 14th Amendment. What do you think, pardner?

CONSTITUTIONAL LAW II

Prof. Moskovitz

PROBLEM 14E To: My law clerk From: Linda Libb, Chief Counsel, California Civil Liberties Union With all the current 3-strikes laws and other steep sentences, our state prisons are full to the brim. So our state Department of Corrections contracted with Lockemup Corp. (L) to open a private prison to handle the overflow of male inmates. The state pays Lockemup a certain fee per inmate per day. Lockemup’s prison has 1,000 male inmates and 300 workers. Inmates spend all their time in the building in which they are kept. Lockemup has some policies that I find disturbing:

* Lockemup refuses to hire men under 5’8” tall or any women, because (they claim): “We want inmates to be afraid of our personnel, so we won’t need to use force any more than we have to, so no one gets hurt.” This excludes short men and all women from working as guards, cooks, clerks, and other jobs at the prison. * Lockemup keeps all black inmates in one building, all Hispanic inmates in another building, and all white and Asian inmates in a third building, because (they claim): “Inmates tend to form gangs by race and fight with other gangs.” * Lockemup keeps all homosexual inmates (20 of them, currently) in a separate building, because (they claim): “Straight inmates will probably harass and maybe even rape them if we don’t.”

I’d like to challenge these policies under the Equal Protection Clause of the 14th Amendment, but only if we have a good chance of winning. Do we?


PROBLEM 14F To: My law clerk From: Connie Law, Esq. Re: People v. DeBird My client, Flip DeBird (D), was charged with violating a new statute, California Vehicle Code §888, which provides:

§888: Road Rage: Any automobile driver who, while driving on any public street or highway, delivers any communication (by words, gestures, or otherwise) to another automobile driver that is likely to cause the other driver to become angry or to violate any traffic law shall be guilty of a misdemeanor.

DeBird was also charged with violating California Vehicle Code §444, which provides: §444: Changing Lanes: Any automobile driver who changes lanes without signaling an intent to change lanes within a reasonable time before such change is guilty of an infraction.

At trial, the only witness for the prosecution was California Highway Patrol Officer Carl Copp, who testified as follows:

I was driving down Mission Street, when I saw a man driving a maroon Toyota change lanes without signaling. He cut in front of a blue Honda driven by a woman. The woman shook her fist at the man. He responded by smiling and displaying the middle finger of his left hand. She then drove around him and tried to cut in front of him, without signaling, but he drove a little faster and blocked her way. I pulled him over and arrested him for road rage and cited him for changing lanes without signaling.

DeBird did not testify. I moved to dismiss the prosecution on the ground that a

conviction would violate the 1st Amendment to the U.S. Constitution. The judge denied my motion and convicted DeBird on both charges. I’ve filed an appeal. What are my chances of winning the appeal?


PROBLEM 14G To: My law clerk From: Natalie Drest, Esq. My clients, the Board of Trustees of Primm Prep School, have asked for my advice. Malcolm High School is a public school in the City of Inner. Today, due to “white flight” during the 1950’s, most of Inner’s residents are black, and 80% of Malcolm’s 1,000 students are black.

Primm Prep School is a private high school in Whitetown, an adjacent suburb that

has very few black residents. Many of the residents of Whitetown had formerly lived in Inner, but had moved out because they did not want to live near blacks. Our state Board of Education requires all private schools like Primm to meet certain educational standards relating to curriculum, quality of teachers, and the like. Primm has 400 students, 10 of whom are black. Primm formerly refused to accept any black students, but that rule was repealed in 1995. Malcolm’s School Board and Primm’s Board of Trustees are about to sign the following “Student Exchange Agreement”:

Section (a): During the school year beginning September of 2003, Primm shall accept up to 20 black students from Malcolm, and Malcolm shall accept up to 20 white students from Primm. Section (b): This Agreement is intended to: (1) change Primm’s image as a school that formerly discriminated against blacks, (2) increase the diversity of the student body of each school, and (3) diminish the racial isolation felt by students who live among their own race only, thereby helping them get along with other races in later life. Section (c): If more than 20 qualifying students apply to transfer, the 20 students shall be selected by lot. However, because Primm’s boys’ basketball team has not won a game in the past 3 years, Primm may give preference to black Malcolm students who are males over 6 feet 4 inches tall.

Primm’s trustees are concerned that a student who does not qualify for a transfer might sue Primm, challenging all or part of the “Student Exchange Agreement” under the Equal Protection Clause of the 14th Amendment. Please analyze the likelihood of success of such a lawsuit.

CONSTITUTIONAL LAW II

Professor Moskovitz

PROBLEM 14H To: My law clerk From: Connie Law, City Attorney The recent election has left our city awash in a sea of unsightly political signs stuck onto buildings, parking meters (sometimes covering up the instructions on how to use the meter), and even on the sidewalks. Sometimes campaign workers get consent from the property owner to post signs, and sometimes they don’t. Some of the signs are laced with profanity, dirty pictures, and very nasty false statements about opposing candidates. Some campaign workers rip down their opponent’s signs, and when caught in the act by opponents, this has led to fist-fights on occasion. We’ve asked candidates not to post signs, or at least to take them down after the elections, but most have done this only haphazardly, at best. It costs property owners and the City money to get them removed. The City Council has directed me to draft an ordinance that addresses these problems, so we can avoid them during the next election. Here is my first draft. Please advise me as to whether any or all of this would survive a First Amendment challenge. If you think any parts would be invalidated, please redraft them to make them valid and still accomplish as many of our goals as you can (if this is possible).

ORDINANCE #123: SIGNS

Section 1: No person shall affix any inappropriate political sign to any privately-owned building on a wall that faces the street. “Inappropriate” means a sign that includes words or pictures that use profanity, nudity, or falsity, or is likely to provoke a violent reaction. Section 2: No person shall affix any object to a building he or she does not own, unless he or she has the permission of the owner. Section 3: No person shall affix any political sign to any city-owned parking meter or to the pavement of any city-owned sidewalk. Section 4: Any violation of this ordinance shall be punishable by a fine of $100.

SUGGESTIONS FOR TAKING LAW SCHOOL ESSAY EXAMS by Professor Myron Moskovitz

Like bar exams, law school essay exams are time-pressure exams. You will be given only a limited amount of time (usually one hour) to write your answer to each question (and there might be 2 or 3 questions). You should go into exams with some strategy, in order to produce an answer that has the best chance of giving the professor what he or she wants. Here are some suggestions for developing such a strategy:

1. Find The Question. When you read the exam, find The Question. It is usually at the end, but sometimes at the beginning or even in the middle. And read the facts carefully — so you don’t give the right answer to a Question not asked. 2. Focus on The Question. Your professor wants you to answer The Question — and not just use the exam as an excuse to show off what you learned in the course. Everything you write should help answer The Question. If it doesn’t, don’t waste your precious time with it. So don’t write long “introductions,” don’t give a lot of “background,” and don’t discuss issues that might have been asked about but weren’t. Professors call this “fluff.” Some professors grade down for fluff, and some merely ignore it. But it always costs you time. 3. Write an Outline. Spend about ¼ of the time allotted for the exam reading the exam, thinking about it, and preparing an Outline of your answer. An Outline is not a list. It is an organized arrangement of the issues on the exam, set out chronologically (if they arise chronologically in the exam).

The major issues come directly from The Question, and the sub-major issues come from the rules of law. Make your Outline as detailed as possible. This will ensure that you don’t miss anything. 4. Indicate The Relative Importance of The Issues On Your Outline. The issues (and sub-issues) are not of equal importance. Your professor probably placed both “easy” issues and “hard” issues on the exam. An issue is “easy” if it has only one reasonable outcome. An issue is “hard” if reasonable people could disagree as to its proper outcome.

Easy issues require only brief discussion, while hard issues require extensive discussion. If you spend too much time on easy issues, you won’t have enough time to discuss the hard issues, and your grade will suffer. Because hard issues might arise near the end of the exam (if you discuss the issues chronologically), you should budget your time now, while you are preparing your Outline, so you don’t run out of time to discuss all hard issues thoroughly.

One way to do this is the “1-2-3” system, where 1 means easy, 3 means hard, and 2 is somewhere in the middle. Simply write a 1, a 2, or a 3 next to each issue and sub-issue on your Outline. If you don’t have at least one 3 on your Outline, you probably failed to recognize a hard issue. 5. Start Writing. Follow your Outline, so your presentation is organized.

Begin each issue by explaining how the issue is relevant to The Question.

6. Use “IRAC.” When writing about each issue or sub-issue, it is usually best to organize your discussion via the “IRAC” system. First state the Issue (or sub-issue) you are about to discuss — in no more than one sentence. Then state the correct Rule of law that applies to the Issue. Usually, this requires no more than one or two sentences, but might require more if the rule is in doubt. Then Apply the Rule to the facts in the exam. This is the most important part of your analysis and will have the most effect on your grade, so it might well take several sentences. Then briefly state your Conclusion. You need not include headings that say “Issue,” “Rule,” etc. But the substance of IRAC usually works well. 7. The Issue. The major issues arise from The Question, which might raise more than one issue (e.g., “Discuss the potential liability of A and B”).

The sub-major issues arise from the rules of law that apply to each issue. Thus, if A’s liability depends on whether A made a contract, this might turn (depending on the facts) on whether there was both an offer and an acceptance. Therefore, a discussion of whether A made a contract might break down into two sub-major issues: 1. Did A make an offer? and 2. Did B accept? There might well be sub-sub-issues. Because an “offer” requires both an objective manifestation of an intent to make an offer and clarity of terms, sub-issue #1 might break down into: a. Did A manifest an intent to make an offer (or did he appear to be joking)? and b. Were A’s terms sufficiently certain?

8. The Rule. State the rule accurately and completely. If you state it inaccurately, both your Application and your Conclusion will be wrong. You need not cite cases, but you may if you like. If there is a “majority” rule and a “minority” rule and the Question does not exclude one of them, state and apply both.

9. The Application. You must carefully apply the correct Rule of law to the facts given in the exam. This is the area where most students have the most trouble.

The most common problem is a tendency to see only one side of an issue. It is not unusual for almost half the class to be “certain” that an issue must be resolved one way, almost half the class to be “certain” that is must be resolved the other way — and neither half to mention the arguments made by the other half! The handful of students who discuss both sides will get the high grades, because these students recognize what the professor intended: this is a hard issue, with reasonable arguments on both sides. The key to recognizing hard issues is to put yourself in a state of mind where you are criticizing every one of your initial reactions. Every time you think of something, ask yourself: “Is there a reasonable counter-argument to what I just thought?” If so, mention it, discuss it, and (if possible) rebut it. If not, then the issue is not a hard issue, but an easy one, and you shouldn’t spend much time discussing it. At least once on every exam, you should say something like “On the other hand. . . “ If you try hard but can’t think of another hand, then the issue is probably an easy one. But often there is another hand. Hard issues always have other hands. Many students run away from hard issues. Don’t do that. Run toward them. There lies the land of A’s and B’s. Be sure to examine all the facts in the exam. Start with the assumption that the professor probably put every fact in the exam for a reason, and if you failed to discuss a fact, you might have missed something. (Some facts, however, might be “ringers” — they are indeed irrelevant to your analysis. A real lawyer must distinguish the relevant from the irrelevant, and so must you.) Sometimes it is not easy to Apply a Rule because the Rule itself is fuzzy. For example, some word in the Rule (e.g., “reasonable” or “proximate”) is not as clear as it might be. To flesh out the true meaning of the Rule, you might discuss (1) the policy behind the Rule and whether that policy would be furthered by a ruling one way or the other in your case, and/or (2) how courts have applied the Rule to certain factual situations (which shows what the Court “really meant” when it stated the Rule), and then compare those facts to the facts on your exam. Identify the name of the case by name, if you can. If you can’t, then identify it in some other way (e.g., “the case about the garbage can”). 10. The Conclusion. Write a Conclusion for each issue, sub-issue, etc. right after your Application. Do not leave Conclusions for the end of the exam. Your Conclusions are not your opinions re how issues should be resolved. A client does not care about her lawyer’s opinion re who should win, but about the court’s likely ruling. Likewise, your professor wants your prediction of how a court would resolve this issue. You must have a Conclusion for each issue, sub-issue, etc. This is the only way your professor can assess your judgment. Your Application might include some “far out” arguments, and your professor can’t tell whether you really believe they will work unless you conclude with your prediction of how the court will decide the issue. If the issue is a hard one and it is difficult to predict how a court will rule, it is perfectly OK to say so. Indeed, at least once in every exam you should say that the issue is “close.” (The trick, however, is to say this about issues that are close — and not about easy issues.) But even if the issue is close, you must make your prediction.

The Conclusion should be no more than a sentence or two, but it should include a reason why you predict that a court will accept some arguments in your Application and reject counter-arguments. 11. Consider Alternative Theories. A good lawyer does not put all eggs in one basket. Suppose 2 theories might apply to an issue or sub-issue. If your application of one theory easily disposes of it (i.e., reasonable people could not disagree with your conclusion), there is no need to discuss the other theory extensively. But if the conclusion was “close,” you must apply the other theory too. Suppose, for example, you conclude that A made no valid offer because he was joking. If this issue was at all close, you must go on: “But if the court finds that he was not joking, then the court would consider whether A made no valid offer because A’s proposed terms were too uncertain. Etc.” 12. Write Legibly! If your professor has difficulty reading your chicken-scrawls, you might not get credit for your brilliant insights. Also, slow decipherment of each word will prevent the professor from following your train of thought. If you can’t write clearly, type. If you can’t do either, print. Write on only one side of each page, and write on every other line. This will enable to you to insert new ideas that come to you while reading over your answer before you hand it in.

13. Practice, practice, practice. Don’t expect to get the hang of writing exams well right away. It takes time and practice. Don’t be discouraged. Keep working on it, and you’ll do fine.

constitutional law ii — professor moskovitz

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