TOURO COLLEGE Jacob D. Fuchsberg Law Center FINAL EXAMINATION. Closed Book Spring 2010 RETURN DAY: Monday DATE: May 10, 2010

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1 Student Exam I.D. Number TOURO COLLEGE Jacob D. Fuchsberg Law Center FINAL EXAMINATION Closed Book Spring 2010 RETURN DAY: Monday DATE: May 10, 2010 LENGTH: 2 hours & ½ hours TIME: 9:30 A.M. CONSTITITIONAL LAW II PROFESSOR EILEEN KAUFMAN GENERAL INSTRUCTIONS: Do not use your name or social security number. Identify yourself by using the student exam identification number which was distributed by the Registrar s office. You must sign out at the close of the exam. Please bring all of your test papers up to the front of the room. Please sign your name next to where it is printed on the page and write your student exam I.D. number. SPECIAL INSTRUCTIONS: This exam consists of two parts. Part I contains 20 multiple choice questions worth two points each for a total of 40 points. Part II contains six questions of variable lengths worth a total of 60 points. Plan your time accordingly. The answers to the multiple choice questions must appear on the Scantron. The answers to Part II must appear in the bluebook unless you are using a computer. Please write legibly on only one side of each page in the bluebook. You will receive no credit for illegible answers. GOOD LUCK! 1

2 Part I Multiple Choice (2 points each) CHOOSE THE BEST ANSWER AND INDICATE THE LETTER CHOSEN ON THE SCANTRON FORM. DO NOT MAKE ENTRIES ON THE FORM UNTIL YOU ARE CERTAIN OF THE ANSWERS, SINCE ERASURES CAN LEAD TO INACCURACIES IN GRADING. If you feel compelled to explain your answer because of a perceived ambiguity in the question, you may do so in the bluebook but keep in mind that if your explanation is wrong, you will lose credit for an otherwise correct choice. Explanations are neither required nor favored. 1. Which of the following marriage restrictions is likely to trigger strict scrutiny? a. A law prohibiting incest. b. A law designating who can officiate at a marriage ceremony. c. A tax law that makes it more advantageous to file as a single person rather than married. 2. Which of the following is true regarding the free speech rights of public school students? I. Their rights are co-extensive with (in other words the same as) those of adults. II. Their rights can be curtailed in order to prevent the serious disruption of order or discipline in the school. III. Speech about drug use can be restricted in the interest of deterring drug use by school children. 3. In Caperton v. A.T. Massey Coal Co., the Supreme Court considered whether due process was violated when a state appeals court judge refused to recuse himself in a case involving a party who had made substantial contributions to the judge s election campaign. Which of the following is true? I. The Court held that whether or not due process requires recusal is determined based on an objective test. II. The Court held that due process requires recusal when the probability of actual bias is too high to be constitutionally tolerable. III. The Court held that due process requires the recusal of a judge whenever one of the parties has contributed to that judge s election campaign. 2

3 Questions 4, 5, and 6 are based on the following facts: A police sergeant filed a report critical of environmental hazards at a Bronx precinct. The sergeant was the precinct s training and safety officer who had been assigned to investigate a newspaper report of possible contamination and health risks associated with underground gasoline storage tanks at the stationhouse. After investigating, he wrote a report showing what appeared to be a large number of cancers and other health problems among employees at the precinct. His report led to an environmental evaluation and ultimately to an expensive abatement program by the city. Shortly after he submitted his report, he was reassigned to less desirable shifts and his leave requests were denied. When he complained, the retaliation increased and included verbal harassment by supervisors and negative performance evaluations which led to his being placed on modified duty and stripped of his badge, shield and gun. Eventually, he was fired from the force. 4. The sergeant has sued, claiming retaliation for exercising his First Amendment rights. Which of the following propositions are true? a. His claim will be dismissed because the report was made pursuant to his official duties. b. His claim will be successful because the First Amendment prohibits government from penalizing an employee for being a whistleblower. c. His claim will be dismissed because the subject matter does not raise an issue of public concern. 5. The sergeant has complained that his firing violated procedural due process. Which of the following is true regarding whether or not the sergeant is entitled to due process? I. Whether or not the sergeant will be found to have a protected property interest depends on whether the government job is considered a privilege or a right. II. If the firing was coupled with a public pronouncement that the sergeant had engaged in misconduct and was not fit to be a police officer, he will be found to have a protected liberty interest. III. Whether or not the sergeant has a protected property interest will be determined by looking at state law and rules and the terms of his appointment. 3

4 6. The sergeant has complained that his firing should have been preceded by a pretermination hearing. Assuming that he has been found to have a protected property or liberty interest, which of the following is true regarding how much process is due? a. Due process always requires a pre-deprivation hearing. b. How much process is due will be determined based on state law and rules and the terms of his appointment. c. The court will balance his interest against the government s interest and the risk of erroneous deprivation. d. All of the above. 7. In Troxel v. Granville, the Court was asked to consider the constitutionality of a Washington State law that permitted any person to petition for visitation and authorized the courts to grant visitation whenever it would be in the child s best interest. Which of the following statements of law correctly describes the Supreme Court s holding in that case? a. A statute that authorizes a court to order visitation over the custodial parent s objection absent a finding that the parent is unfit violates a parent s fundamental right to direct the upbringing of his/her child. b. A statute that authorizes anyone to petition for visitation and that does not afford special weight to the parent s view violates the parent s fundamental right to direct the upbringing of his/her child. c. a & b 8. In Gonzales v. Carhart, the Supreme Court considered the constitutionality of the federal Partial Birth Abortion Ban Act which prohibited one method of performing second trimester abortions. Which of the following is true? a. The Court struck down the statute because it did not contain a maternal health exception. b. The Court explicitly overruled Stenberg v. Carhart, the case that had struck down Nebraska s partial birth abortion law. c. The Court concluded that when there is a dispute within the medical community as to whether a procedure is ever medically necessary, Congress can determine that it is never medically necessary. 4

5 9. In which of the following fact patterns would an indigent plaintiff s claim be successful? I. Where plaintiff challenges a state statute requiring a $50 filing fee in order to commence a divorce proceeding. II. Where plaintiff challenges a federal statute prohibiting Medicaid funds to be used for an abortion but authorizing such funds to pay for childbirth. III. Where plaintiff challenges a state statute conditioning an appeal from a court order terminating parental rights on payment of record preparation fees. 10. When a plaintiff asserts a claim under the First Amendment Free Exercise Clause, which of the following principles should the court apply? a. For a person s belief to be religious, the person must believe in some type of almighty being. b. For a person s belief to be religious, the belief must conform to the prevailing doctrine of the religious sect to which the person belongs. c. For a person s belief to be religious, the belief must be genuinely held and must be capable of being validated. 11. Which of the following are likely to violate the First Amendment Free Speech clause? I. A state law that makes it a crime to treat the flag with contempt. II. A federal statute that prohibits doctors in federally-funded clinics from engaging in any abortion counseling. III. A state law that prohibits candidates for judicial office from announcing their views on disputed legal or political issues. 5

6 12. Which of the following types of speech are categorically unprotected under the First Amendment? a. Fighting words, child pornography, and obscenity. b. Fighting words, obscenity, and depictions of animal cruelty. c. Fighting words, obscenity and speech that advocates illegal activity. 13. Which of the following propositions of law regarding Bush v. Gore are accurate? a. A majority of the Court found that the use of standardless manual recounts violated the Equal Protection Clause. b. A majority of the Court found that, due to the safe harbor provision, there was inadequate time to conduct a recount. c. a & b 14. Which of the following statutes or ordinances will be found to violate due process? I. A zoning ordinance restricting occupancy to members of a single family defined to prohibit a grandmother from living with her two grandsons because the grandsons were cousins, not brothers. II. A state statute creating a conclusive presumption that a child born in wedlock is the child of the mother s husband, challenged by a man who, in fact, is the biological father. III. A state statute requiring prohibiting the removal of life sustaining treatment absent clear and convincing evidence of an incompetent patient s wishes to have the treatment withdrawn. a. I only b. I & II c. II only 6

7 15. Which of the following is true regarding Lawrence v. Texas (striking down a Texas statute that criminalized consensual homosexual sodomy)? I. The Court explicitly overruled Bowers v. Hardwick. II. The Court found that plaintiffs had a constitutionally protected liberty interest in engaging in private sexual consensual conduct. III. The Court based its holding on due process rather than equal protection. 16. In which of the following cases will the Court use strict scrutiny and strike down the statute on the ground that it violates the constitutional right to travel? I. A challenge to a state statute that limits the maximum welfare payments that newly arrived residents receive to the amount paid by the state of their prior residence. II. A challenge to a state statute that provides reduced tuition for residents of the state to attend the state university. III. A challenge to a federal statute that prevents travel to Cuba. a. I only b. I & II c. II only d. I, II and III 17. Which of the following is true regarding voting rights? I. The Constitution explicitly prohibits the abridgment of the right to vote on account of race, sex, or age (18). II. Poll taxes are unconstitutional whether imposed in federal elections or state or local elections. III. The one person, one vote principle applies to both houses of a state legislature and both houses of Congress. 7

8 18. Which of the following is true regarding San Antonio Independent School District v. Rodriguez, the case challenging Texas school financing system which resulted in gross disparities of per pupil expenditures from one district to another. I. The Court held that education is not a fundamental right. II. The Court held that education is a fundamental right because, although unenumerated, it is central to other rights, such as voting. III. The case did not resolve the constitutionality of absolute deprivations of education. 19. Which of the following propositions of law regarding the First Amendment are accurate? I. The test for analyzing a content neutral speech restriction is that it must promote a substantial government interest, it cannot burden more speech that necessary to further the goal, and it must leave open ample alternative channels of communication. II. III. A prior restraint is presumptively unconstitutional. A law restricting speech cannot be challenged on vagueness or overbreadth grounds by a person whose speech would otherwise be unprotected by the First Amendment. 20. Which of the following propositions of law regarding the First Amendment are accurate? I. The test to evaluate restrictions on commercial speech is a form of intermediate scrutiny. II. A prosecution for incitement of unlawful activity must be supported by either an intent to incite illegal activity or a likelihood of imminent illegal activity. III. Whether or not material is obscene and thus outside the protection of the First Amendment is determined by national standards. a. I only b. I & II c. II only d. I, II and III 8

9 Part II (total of 60 points) BE MINDFUL OF THE POINT ALLOCATIONS FOR EACH QUESTION. THEY SHOULD SERVE AS AN INDICATION OF HOW MUCH TIME TO SPEND ON EACH QUESTION. 1. In one sentence, state the principle of law announced in Employment Division v. Smith (the case involving the denial of unemployment insurance benefits to an employee who was fired for the use of peyote in a religious ritual). (3 points) 2. Explain why the due process challenge to a statute prohibiting assisted suicide failed. (6 points) 3. IMPORTANT - For purposes of this question, you will lose points for not following directions. a. In ONE sentence, describe the single strongest argument that prohibitions on gay marriage violate the Constitution and cite the one case that best supports that argument. (3 points) b. In ONE sentence, describe the single strongest argument that prohibitions on gay marriage do not violate the Constitution and cite the one case that best supports that argument. (3 points) 4. Describe the test that the Court uses to determine how much process is due (Matthews v. Eldridge). (5 points) 5. Earlier this year, Oklahoma passed an anti-abortion statute that makes it illegal to have an abortion because of the sex of the child. Analyze the constitutionality of the statute. (Do not analyze any equal protection claim.) (20 points) 9

10 6. Annie Gaylor is an atheist who founded an organization called Freedom from Religion, described as devoted to promoting the constitutional principle of separation of church and state. It has 14,000 members nationwide and over the years has successfully sued to stop Bible instruction in a Tennessee school district, to stop a Colorado public school from requiring students to do volunteer work at churches, and to overturn a Madison law ordering businesses to close for hours on Good Friday. The organization s latest lawsuit challenges a federal statute, 36 U.S.C. 119 that provides: The President shall issue each year a proclamation designating the first Thursday in May as a National Day of Prayer on which the people of the United States may turn to God in prayer and meditation at churches, in groups, and as individuals. The statute was enacted in 1952 and all presidents since that time have issued proclamations designating the National Day of Prayer. The bill proposing the National Day of Prayer was first introduced at the conclusion of an evangelist revival in Washington D.C. led by Billy Graham in which he gave a speech on the Capitol steps asking Congress to call on the President for the proclamation of a day of prayer. Graham stated that men have come to believe that religion has no place in the affairs of the state We have dropped our pilot, the Lord Jesus Christ, and are sailing blindly on without divine chart or compass God is warning the American people, through the preaching of His word, to repent of sin and turn to God while there is time. Members of both houses of Congress drew on Graham s speech to urge passage of the statute. The Senate report concluded that Prayer has indeed been a vital force in the growth and development of this Nation. It would certainly be appropriate if, pursuant to this statute, the people of this country were to unite in a day of prayer each year, each in accordance with his own religious faith, thus reaffirming in a dramatic manner the deep religious conviction which has prevailed throughout the history of the United States. Last month, the federal district court ruled in the organization s favor stating that the federal government could not enact a law in support of prayer any more than it could encourage citizens to fast during the month of Ramadan, attend a synagogue, purify themselves in a sweat lodge or practice rune magic. The judge stayed the ruling for 60 days. In the meantime, the Obama administration announced it would appeal the ruling and that the President would sign this year s prayer proclamation, as scheduled, on May 6 th. President Obama s press secretary stated that the statute calling for a National Day of Prayer is simply an acknowledgement of the role of religion in American life. Assume that the Circuit Court of Appeals affirms the ruling and that the case is now pending in the Supreme Court. Analyze how the Court is likely to analyze the issue. In your analysis, indicate whether the decision is likely to be unanimous, and if not, explain why not. (20 points) 10