Constitutional Law Flashcards
ALA Quizzes, Kaplan Quizzes, Kaplan Qbank (148 cards)
1
Q
Following a judicial determination that it had engaged in past discrimination, a state university agreed to hold 15% of the admissions spots in each department for minority students. A couple years later, a white female student applied to the state university’s comparative poetry program and was rejected. The student’s aptitude test scores and grade point average were above more than half of the minority students admitted into the program. The student subsequently brought suit against the university claiming that she was unlawfully discriminated against because of her race.
Should the court rule in favor of the student?
A No, because a state may consider race as a factor in admissions when it is attempting to aid disadvantaged minorities and penalizes no particular group.
B No, because the racial classification is designed to remedy past unlawful discrimination.
C Yes, because a classification solely by race, even to achieve a worthy purpose, is not necessary to satisfy a compelling state need, and therefore violates the Equal Protection Clause.
D Yes, because a state university may not use race as a criterion in making admissions decisions.
A
The correct answer is: No, because the racial classification is designed to remedy past unlawful discrimination.
Discussion of correct answer: While race or ethnic origin may be considered in admissions programs, minority set-asides are not constitutional when they are instituted in an attempt to remedy general societal injustice. However, racial quotas may be used to remedy past unlawful racial discrimination [University of California Regents v. Bakke, 438 U.S. 265 (1978); Grutter v. Bollinger, 539 U.S. 306 (2003)]. Here, the state university has been found guilty of past discrimination, and instituted the affirmative action program under court order. As such, the set-aside here is legal, and the court should rule in favor of the university.
2
Q
In a 2010 lawsuit, a state university was held to have unlawfully refused applicants into the engineering masters program on account of their race in the past. The university agreed to hold 20 places in each class for black students, pursuant to a consent decree entered that same year. In 2012, a white male student applied to the engineering masters program at a state university and was rejected. The student’s engineering aptitude test score and grade point average was above 15 of the 20 black students admitted.
If the student brings suit to require that he be admitted because the university has unlawfully discriminated against him because of his race, what would the court do?
A Grant relief, because a state may not use race as a criterion in making admissions decisions.
B Grant relief, because a classification solely by race, even to achieve a worthy purpose, is not necessary to satisfy a compelling state need, and therefore violates the Equal Protection Clause.
C Deny relief, because a state may consider race as a factor in admissions when it is attempting to aid disadvantaged minorities and penalizes no particular group.
D Deny relief, because the racial classification is designed to remedy past unlawful discrimination.
A
The correct answer is: Deny relief, because the racial classification is designed to remedy past unlawful discrimination.
Discussion of correct answer: Racial quotas may be used to remedy past unlawful racial discrimination. This case is different from University of California Regents v. Bakke [438 U.S. 265 (1978)], because the University of California had not been found guilty of past discrimination and was not under a court order to integrate, whereas the state university could be required to use the quota system because of its past discrimination.
3
Q
A company was in the business of manufacturing bulletproof vests. The vast majority of the vests that it sold were sold to the federal government for use by the United States Army. The company implemented a rule mandating that all employees retire once they reached the age of 60. A longtime employee of the company who was 62 years old filed a lawsuit against the company alleging that the new rule violated his rights under the Equal Protection Clause of the Fourteenth Amendment.
Which of the following arguments is the company’s best defense against the man’s lawsuit?
A The employee cannot meet his burden of showing that the rule bears no rational relationship to any legitimate government interest.
B The company can meet its burden to show that the rule is substantially related to an important government interest.
C The company can meet its burden to show that the rule is necessary to further a compelling government interest.
D The employee cannot demonstrate that the state action requirement has been met.
A
The correct answer is: The employee cannot demonstrate that the state action requirement has been met.
Discussion of correct answer: The Equal Protection Clause only applies to actions of the federal government and the states. The company, a private citizen, cannot violate the Equal Protection Clause, even though the company sells most of its products to the federal government. The company was not carrying on activities normally performed by the government nor was there significant state involvement in the company’s activities that would warrant application of the Equal Protection Clause to the company’s rule.
4
Q
A city with a majority nonwhite population has historically had a nonwhite police commissioner. After a recent election, the new city mayor appointed the first white police commissioner in decades. Two months into the job, the new commissioner instated a “qualification exam” requirement for all current police officers and those seeking to become officers. The stated purpose of this exam was to “ensure that only the most qualified people are upholding the laws of this city and state.” Current officers who failed the exam would have their employment terminated, and new applicants would need to pass the exam before being considered to join the police academy. For those who failed the exam, an appeals process was also put in place, allowing the applicant to argue that they were qualified for the position despite failing the written exam.
In the wake of the new requirements, 80% of the nonwhite police officers failed the exam and were fired, while only 20% of the white officers failed. Of those who appealed, over 75% of white officers had their appeals granted, while only 10% of nonwhite officers had theirs granted. After six months, it was found that white applicants passed the test 68% of the time, while only 12% of nonwhite applicants passed. Half of the white applicants who appealed were admitted to the police academy, while no nonwhite applicant’s appeal was granted.
Is the city’s qualification exam requirement constitutional?
A No, because tests that disadvantage racial minorities receive strict scrutiny and are presumptively unconstitutional.
B No, because the test has a disparate impact on the success of racial minority candidates.
C Yes, because a state’s police powers includes the absolute right to prescribe qualifications for city police officers.
D Yes, because there is no evidence of intentional race discrimination in the administration of the test.
A
The correct answer is: Yes, because there is no evidence of intentional race discrimination in the administration of the test.
Discussion of correct answer: In Washington v. Davis [426 U.S. 229 (1976)], the Supreme Court held that race-neutral qualifications for state offices did not trigger heightened (i.e., intermediate or strict) scrutiny in the absence of evidence of a discriminatory purpose. In Davis and other cases, the Court has made clear that a disproportionate impact on distinct racial groups is insufficient to show intentional discrimination and trigger heightened scrutiny.
5
Q
A state recently enacted a statute prohibiting all minors under the age of 18 from consuming any form of alcoholic beverage. The statute was passed due to concern regarding the deleterious effects of underage drinking. During legislative hearings, unassailable data was presented showing that the majority of automobile accidents involving teenage drivers involved those who were driving under the influence of alcohol. Furthermore, the legislature was alarmed by the testimony from leading psychologists and educators documenting a link between alcohol dependency and increased suicide rates among high school students. A local church filed suit challenging the constitutionality of the statute on free exercise grounds. The church contends that for the last 100 years, as part of its communion service, seven-year-olds who receive their first holy communion drink a sip of red wine. Which of the following correctly states the burden of persuasion?
a. The state has the burden of showing that the statute is necessary to further a compelling government interest.
b. The state has the burden of showing that the statute furthers a legitimate government interest.
c. The church has the burden of showing that the statute is not rationally related to a legitimate government interest.
d. The church has the burden of showing that the statute does not further a compelling government interest.
A
c. The church has the burden of showing that the statute is not rationally related to a legitimate government interest.
6
Q
A state statute flatly bans the sale or distribution of contraceptive devices to minors. A national retailer of drugs and related items is charged with violating the statute.
Which of the following is the strongest constitutional argument the retailer could make to defend itself?
A The statute constitutes an undue burden on interstate commerce.
B The statute denies minors a fundamental right without due process.
C The statute denies the retailer a privilege or immunity of state citizenship.
D The statute violates the First Amendment right to freedom of religion because it regulates morals.
A
The correct answer is: The statute denies minors a fundamental right without due process.
Discussion of correct answer: The strongest argument is that the statute prohibiting the sale of contraceptives to minors would infringe upon the fundamental right to privacy protected by the Fourteenth Amendment Due Process Clause. The retailer would be able to assert those rights because it has third-party standing. Third-party standing allows a claimant to challenge government action that violates the constitutional rights of third parties when: (1) a “special relationship” exists between the claimant and the third party; and (2) it would be difficult, unlikely, or impossible for the third party to challenge the government action itself. Here, the relationship of seller-buyer (in this problem, the retailer and the minors) would be sufficient and it would be highly unlikely that minors would assert a cause of action in court to challenge this law. Moreover, the fundamental right challenge would be successful because the U.S. Supreme Court has struck down laws that prohibited minors from purchasing contraceptives.
7
Q
A state requires aspiring applicants who wish to become officers in the state National Guard to take a “leadership exam” that consists of 100 multiple-choice questions. The questions measure literacy, knowledge of National Guard procedures, and judgment of possible courses of action in hypothetical combat and noncombat situations. The racial composition of the applicant pool for officer candidates is 54% white and 46% racial minorities. Historically, 60% of white applicants pass the exam, while only 25% of racial minority applicants do so. As a result of the exam requirement, the officer corps of the state National Guard is disproportionately composed of white officers compared to both the proportion of minority applicants and the proportion of racial minorities in the population of the state as a whole.
Is the state’s leadership exam requirement constitutional?
A Yes, because a state’s police powers includes the absolute right to prescribe qualifications for state officers, including members of its National Guard.
B Yes, because there is no evidence of intentional race discrimination in the administration of the test.
C No, because the test has a disparate impact on the success of racial minority candidates.
D No, because tests that disadvantage racial minorities receive strict scrutiny and are presumptively unconstitutional.
A
The correct answer is: Yes, because there is no evidence of intentional race discrimination in the administration of the test.
Discussion of correct answer: In Washington v. Davis [426 U.S. 229 (1976)], the Supreme Court held that race-neutral qualifications for state offices did not trigger heightened (i.e., intermediate or strict) scrutiny in the absence of evidence of a discriminatory purpose. In Davis and other cases, the Court has made clear that a disproportionate impact on distinct racial groups, standing alone, is insufficient to show intentional discrimination and trigger heightened scrutiny. Here, there is no evidence of intentional race discrimination other than the disproportionate impact, and so the exam requirement is constitutional.
8
Q
A county decided to revamp its voting procedures in order to streamline the process. The county ordered new touch-screen voting machines, solicited more volunteers for election days, lengthened voting hours, made vote-by-mail available to all residents, and enacted various other rules to help make sure that election days ran more smoothly. One new rule required people to check in at the polls at the table labeled with their party affiliation: Republican, Democrat, or Other. A voter in that county objected to this modification of the manner in which elections were conducted. She was a Democrat who sent her child to a school in her neighborhood that was very heavily populated with Republicans. She served on the board of the parent-teacher organization at the school. The voter did not wish for her party affiliation to be public in case it might cause controversy for herself or her child.
Assuming proper standing, if the voter challenges the constitutionality of the rule requiring voters to line up according to party affiliation at the polls, what is the likely outcome?
A The rule will be invalidated, because it violates her right to privacy.
B The rule will be invalidated, because it violates her procedural due process rights.
C The rule will be upheld, because it passes strict scrutiny.
D The rule will be upheld, because it passes the rational basis test.
A
The correct answer is: The rule will be upheld, because it passes the rational basis test.
Discussion of correct answer: The court is likely to uphold this rule, because the county will only need to show a rational relationship between the rule and the county’s objective to streamline voting procedures. Strict scrutiny applies when the government restricts the right to vote, a right that has been held to be fundamental under the Constitution. However, rational basis scrutiny applies to reasonable restrictions based on things like age or duration of residency. Moreover, voter registration requirements and regulation of the time, place, and manner of casting ballots are valid so long as they do not impose an undue burden on the right to vote. Here, there is no restriction at all on the right to vote, other than the concern that others will know your party affiliation. Because the county made vote-by-mail an option for everyone and because voter registrations are public records anyway, it seems very unlikely that this rule will be held to violate the Constitution. There is no constitutionally protected privacy right as to party affiliation.
9
Q
An investigative report by a major network news magazine revealed that fish and other seafood in fish markets around the country were improperly stored at high temperatures, and in unsanitary conditions, creating a serious public health hazard. In response to the report, the state legislature of Atlantis enacted regulations requiring all commercial fish markets in Atlantis, and all out-of-state markets doing business in Atlantis, to have their seafood inspected by the Atlantis Fisheries Division (AFD), a state agency. An AFD inspection sticker certifies the seafood as safe for sale in Atlantis. The inspection regulations provide that uncertified seafood is subject to seizure and destruction by the AFD.
Hook runs the biggest lobster market in the State of Marina. Forty percent of Hook’s yearly sales are in Atlantis. All of Hook’s seafood is inspected according to stringent standards set by Marina, but Atlantis has informed him that Marina certification cannot be substituted for Atlantis certification of any lobsters that cross state lines. In a suit by Hook to enjoin enforcement of the inspection regulations as to his lobster business, is Hook likely to prevail?
A. No, because the Atlantis state regulations have a rational relationship to the health and safety of Atlantis citizens.
B. No, because Atlantis has a legitimate state interest in protecting Atlantis citizens from unsafe food.
C. Yes, because the Atlantis state regulations interfere with Hook’s interstate business in lobsters.
D. Yes, because the Atlantis state regulations violate Hook’s equal protection rights.
A
C. Yes, because the Atlantis state regulations interfere with Hook’s interstate business in lobsters.
10
Q
An animal rights activist group always fought developers when construction projects threatened wildlife in the area. Some members of the group became involved in a battle with a corporation that owned the largest ski resort in town. The corporation obtained permits to expand its operations by adding additional trails on the mountain and increasing the square footage of its ski lodge. Members of the group resisted all expansion efforts in the proper public forums, but when the corporation’s permits were approved, some of the more extreme members decided to take desperate action.
Fringe members flooded the unoccupied ski lodge by opening the gates of a local dam during the off-season. The dam water flooded the lodge, rendering it a total loss and causing millions of dollars in damages. Thereafter, the state legislature enacted a law restricting the rights of members of the group in several ways, one of which was excluding members of the group from holding elected office in the state. A senator justified the legislation on grounds that “terrorists have no place in our placid state.” A member of the group was in the middle of his campaign for mayor. The member did not participate in the flooding of the ski lodge.
If the member challenges the constitutionality of the exclusionary legislation in court, what is the likely outcome?
A The state will prevail, because the group is a subversive organization.
B The state will prevail, because it acted within its police power.
C The member will prevail, because the law is a bill of attainder.
D The member will prevail, because he did not engage in violence as a member of the group.
A
The correct answer is: The member will prevail, because the law is a bill of attainder.
Discussion of correct answer: A bill of attainder punishes named individuals or easily ascertainable members of a group without the benefit of judicial trial. In the Constitution, Article I, Section 9, Clause 3 states: “No bill of attainder…shall be passed”; and Article I, Section 10, Clause 1 provides: “No state shall pass any Bill of Attainder.” These apply to states as well as the federal government. The state legislation in this question is a bill of attainder because it amounts to legislative punishment for membership in the animal rights activist group. Members of the group, such as the member in question, are prohibited from holding elective office without a judicial determination of their right to serve. The legislation is unconstitutional.
11
Q
A statute regulating the practice of midwives in a state was passed at midnight at the end of the regular legislative session. There were few legislators in attendance at the time of the vote, because most of the work of the legislature had been done and most members had gone home for the holidays, although a quorum existed. The sponsor of the legislation finally succeeded in persuading a core group to vote for the bill, which included a provision that the founder of the midwives’ lobbying group would no longer be licensed under the state’s laws. The group’s founder was a practicing midwife who had lobbied successfully against health maintenance organizations and on behalf of a number of state laws guaranteeing patients the right to treatment in the area of pregnancy and childbirth. The bill’s sponsor saw the midwives’ successes as having driven up the cost of health care treatment throughout the state.
If the group challenges the revocation of the founder’s license in federal court, what is the most likely outcome?
A The state will prevail, because regulation of the group does not implicate interstate commerce.
B The state will prevail, because a license is a privilege that can be revoked without procedural due process.
C The lobbying group will prevail, because the revocation constitutes a bill of attainder.
D The lobbying group will prevail, because the revocation violates members’ right to work under the Privileges and Immunities Clause.
A
The correct answer is: The lobbying group will prevail, because the revocation constitutes a bill of attainder.
Discussion of correct answer: Sections 9 and 10 in Article I of the U.S. Constitution bar both federal and state legislatures from passing bills of attainder. A bill of attainder is a legislative act that inflicts punishment without a judicial trial upon named individuals or an easily ascertainable group for past conduct. The legislative act in this question named the person to be punished and revoked her license to practice midwifery in the state without giving her notice and a hearing. The revocation was unconstitutional, and the group should prevail.
12
Q
A state provided for the free distribution of textbooks to all public and private school students, certified teachers, and offered vouchers and tuition grants for families wishing to send their children to private schools. One private school that offers elementary and secondary education in the state denies admission to all children of Canadian descent.
Two children whose family originated from Toronto, and who had lived in the state for several generations, were denied admission to the private school. The parents subsequently filed an action against the state challenging the distribution of vouchers and tuition grants to the school was unconstitutional.
Which of the following is the strongest argument in favor of finding the challenged public aid unconstitutional?
A Issuing tuition grants to this private school furthers segregation.
B It is unconstitutional for a state to provide aid to private schools.
C The Constitution forbids private, as well as public, bias in education.
D Tuition grants for private schools do not serve any legitimate educational function.
A
The correct answer is: Issuing tuition grants to this private school furthers segregation.
Discussion of correct answer: The Supreme Court has held that public aid given to private, segregated schools–including the free distribution of textbooks, exclusive use of public facilities, or the issuance of tuition grants–is unconstitutional [Norwood v. Harrison, 413 U.S. 455 (1973)]. The majority opinion stated that a state cannot give significant aid to schools that practice racial or other invidious discrimination.
13
Q
A state abortion statute contains the following provisions applicable to all persons seeking an abortion: (1) any person seeking an abortion at a public hospital must meet with a counselor and review written information about the procedure at least one day before any procedure will be performed, (2) any person seeking an abortion who is ineligible for Medicaid funds and is otherwise uninsured must reimburse the hospital for the cost of the procedure, and (3) any person seeking an abortion at a public hospital must provide proof of residency in the state for a period not less than one month. The same statute contains the following provision applicable to minor persons seeking an abortion: Any minor person seeking an abortion must notify her parents prior to the procedure, absent court approval.
Which provision of the statute is most vulnerable to constitutional challenge?
(A) The provision requiring reimbursement for costs.
(B) The provision requiring proof of state residency
(C) The provision requiring a one-day waiting period before the procedure will be performed.
(D) The provision applying to a minor person seeking an abortion.
A
(B) The provision requiring proof of state residency
14
Q
A city school board often permitted nonreligious organizations to conduct meetings at high school buildings after school hours. A local religious group submitted a request to use a public high school building to conduct a meeting one evening. The school board denied the request, claiming that allowing the religious group to use school property would violate the Establishment Clause. The religious group filed suit in state court asserting that the school board’s action violated the organization’s rights of equal protection and freedom of speech. In addition, the religious group argued that conducting a meeting in a school building after regular school hours did not violate the Establishment Clause inasmuch as other nonreligious organizations were granted access. Is the school board’s action in denying the religious group access to the public school building valid?
a. Yes, because allowing equal access to the school for religious speech would violate the First Amendment’s Establishment Clause.
b. Yes, because allowing religious groups to use public school buildings fosters excessive entanglement between state and church.
c. No, because allowing nonreligious groups to use school premises after school hours while denying religious organizations equal access violates the First Amendment’s freedom of speech.
d. No, because allowing nonreligious groups to use school premises after school hours while denying religious organizations equal access violates equal protection under the Fourteenth Amendment.
A
c. No, because allowing nonreligious groups to use school premises after school hours while denying religious organizations equal access violates the First Amendment’s freedom of speech.
15
Q
A state held an election in which there were many charges of voter fraud and vote manipulation. Concerned about voting fraud, the state legislature passed a bill providing that any resident of the state who wished to vote in a state election could not vote until he or she had lived within the state for at least one year. The governor of the state signed the bill into law. A group of new residents who wished to vote in a state election but were prohibited under the new law brought suit to enjoin the enforcement of the statute.
How should the court rule?
A In favor of the plaintiffs, because under the strict scrutiny analysis, a one-year residency requirement is unconstitutional.
B In favor of the plaintiffs, because under the rational basis analysis, a one-year residency requirement is unconstitutional.
C In favor of the state, because under a strict scrutiny analysis, the statute is necessary to further a compelling state interest, namely to prevent voter fraud.
D In favor of the state, because under a rational basis analysis, the statute is rationally related to a legitimate state interest, namely
A
The correct answer is: In favor of the plaintiffs, because under the strict scrutiny analysis, a one-year residency requirement is unconstitutional.
Discussion of correct answer: For purposes of voting, this state has instituted a durational residency requirement. Specifically, it requires voters to have lived in the state for at least one year. Because such durational residency requirements impact a fundamental right (as they prevent certain persons from voting for a period of time), they are analyzed under a strict scrutiny analysis. While there are exceptions, as a general matter, one-year residency requirements will not be upheld. More specifically, this durational residency requirement was promulgated because of concerns about voter fraud. However, the Supreme Court has determined that residency requirements are not necessary to address such concerns. For these reasons, the statute will be found unconstitutional.
16
Q
A job applicant was a resident alien living in a northeastern state when she earned a graduate degree in education from a top-ranked university in her home state. The program in which she obtained her degree fulfilled all the requirements for state certification in elementary education. The applicant applied for teaching positions throughout the northeast. The job market was tight, and the applicant received few positive responses to her applications. The principal at a public school in her home state returned the applicant’s application with a brief letter indicating that she would not be considered for a position, per state regulation, because she was not a U.S. citizen. The applicant, believing that she was denied employment based on alienage, brought suit against the school.
What is the likely outcome of the applicant’s lawsuit?
(A) The applicant will prevail, because her equal protection rights have been violated.
(B) The applicant will prevail, because she is a member of a protected class.
(C) The applicant will not prevail, because public employment is not a right.
(D) The applicant will not prevail, because this discrimination is reasonable
A
(D) The applicant will not prevail, because this discrimination is reasonable
17
Q
Most of the communities in Red State are racially segregated. The segregation is not a result of any governmental action; it just happens that people settled the state in this manner. One of the public school districts in the state covers an area where residents in the west are white and residents in the east are African-American. As a result, the schools are racially segregated. The school board decides to take action to desegregate the schools. The school board chooses some of the African-American students and assigns them to the school in the west, while moving some of the white students to the school in the east. Some of the parents of students who have been reassigned challenge the reassignment as unconstitutional. The school board maintains that its actions were appropriate to achieve racial desegregation.
Who will prevail?
A The parents, because a school district is not permitted to carry out actions designed for racial balancing to correct de facto segregation.
B The parents, because a school district cannot reassign students based on race to correct de facto segregation.
C The school district, because a school district may reassign students based on race in order to correct de jure segregation.
D The school district, because a school district may carry out voluntary racial balancing by taking action such as reassigning students, redrawing school zones, or building new schools.
A
The correct answer is: The parents, because a school district cannot reassign students based on race to correct de facto segregation.
Discussion of correct answer: As a general rule, affirmative action measures based on race must pass strict scrutiny. The U.S. Supreme Court has explicitly ruled that a school district may not assign individual students to schools based on race in order to achieve “voluntary integration” or “racial balancing,” when school segregation is caused by social factors (known as de facto segregation). Here, the facts indicate that the racial segregation in this school district is, in fact, de facto segregation; it was caused by social factors, such as the manner in which residents settled in the area. Therefore, the school board may not reassign students throughout the school district in order to achieve a “racial balance.”
18
Q
Recent evidence reported in leading medical journals suggests that hearing loss affects 75% of citizens over the age of 70. A state legislature, concerned with increasing the quality of care to its senior citizens, passes a bill providing that only medical doctors with specialized training in audiology may prescribe and sell hearing aids. The law provides a “grandfather clause” however, exempting all currently registered vendors of hearing aids who have no medical training, as long as they remain in business. A doctor who operates a hearing clinic, brings suit challenging the “grandfather clause” exemption in the new statute.
Is the exemption in the law for all currently registered vendors of hearing aids constitutional?
A Yes, because the classification between existing and new vendors has a rational basis.
B Yes, because those who lawfully engage in an occupation have a fundamental right to continue to do so.
C No, because the statute denies the equal protection of the laws to those patients who purchase hearing aids from non-physicians.
D No, because the statute denies non-physicians desiring to enter this occupation the equal protection of the laws.
A
The correct answer is: Yes, because the classification between existing and new vendors has a rational basis.
Discussion of correct answer: Because the legislature’s purpose in enacting the statute was to upgrade medical care for the elderly, there is a rational basis for excluding new, non-physician hearing aid vendors.
19
Q
Under pressure stemming from a recent accident in which an elderly man ran his car through an outdoor café, injuring several patrons, the state legislature revised its Motor Vehicle Code. Specifically, the legislature enacted a law requiring all citizens to renew their driver’s license every other year, rather than every four years. Additionally, the statute required persons over 65 to take both the written and the driving parts of the exam. A 67-year-old man had recently retired from his job as a city bus driver. He was thereafter informed that he needed to retake both parts of the driving test by the end of the year in order to maintain his license. He claims that he has been a bus driver for 40 years, and never had an accident. He now brings suit in federal district court challenging the state’s new legislation.
Which of the following is the most accurate statement?
(A) The statute is constitutional, because a state can put more stringent requirements on its employees, especially those involved in public safety.
(B) The state must show that the law is rationally related to a legitimate government interest.
(C) The man must show that the law is not rationally related to a legitimate government interest.
(D) The man must show that the law is not substantially related to an important government interest.
A
(C) The man must show that the law is not rationally related to a legitimate government interest.
20
Q
After a highly destructive oil spill, a state passes a law providing substantial funds for environmental remediation. The law allows private contractors to bid for a subset of the funds. It further requires that 15% of all contracts awarded under the bidding process must be awarded to businesses which have greater than 40% of their ownership interests or stock held by racial minorities. The legislative history of the law is clear that its purpose was to promote diversity among government contract recipients and to encourage economic opportunity for minority-owned businesses. The provision has been challenged by a private environmental remediation firm government defense contractor that does not satisfy the 40% racial minority ownership requirement, and which believes it would have been awarded a contract in the absence of the provision. Is this statute constitutional?
A. Yes, because diversity is a compelling government interest.
B. Yes, because the statute remedies the effects of past discrimination.
C. No, because the provision is not tailored to advance an important government interest.
D. No, because the provision lacks a compelling government interest.
A
D. No, because the provision lacks a compelling government interest.
21
Q
The head of a city’s Department of Public Works was a jovial and gregarious fellow. He enjoyed his job, and his workers loved working for him. Although the city hired its maintenance workers “at will,” the head of the Department of Public Works made it a point to let his workers know that once they were on the job for at least seven years, he would never fire them unless they erred so badly as to threaten his job.
When one of his workers reached the seven-year mark, the head of the Department would throw an after-work party at a local Veterans of Foreign Wars hall to honor the employee. At one of these parties, the guest of honor, an employee who had reached his seventh anniversary of employment with the Department, got a bit too drunk and started a fistfight with a co-worker. The next day, the head of the Department fired the employee, saying that he couldn’t bear to have disharmony in his department. The city manager denied the employee a hearing on the matter. The employee sued the city for reinstatement and back pay.
How should the court rule?
A In favor of the city, because the city’s maintenance workers were hired “at will.”
B In favor of the city, because the employee did not have a property interest in his job.
C In favor of the employee, because the refusal to give the employee a hearing violated his due process rights.
D In favor of the employee, because the injury to the employee’s reputation from being fired is a protected liberty interest.
A
The correct answer is: In favor of the employee, because the refusal to give the employee a hearing violated his due process rights.
Discussion of correct answer: Both the Fifth and Fourteenth Amendments protect against the deprivation of “life, liberty or property without the due process of the law.” People are entitled to procedural safeguards (i.e., some form of notice and hearing) when threatened with state deprivation of life, liberty, or property. In matters of public employment, there is a property interest if the employment is under a tenure system or there is a clear understanding, either expressed or implied, that the employee can be terminated only for cause [Perry v. Sindermann, 408 U.S. 593 (1972)]. In this question, the head of the Department of Public Works made it clear that he would not fire his employees without cause after they had been working for the department for seven years and even threw parties to celebrate the occasion. Therefore, the employee had a property interest in his job and was entitled to adequate process before being fired. The city manager’s refusal to give the employee a hearing violated the employee’s due process rights.
22
Q
Due to a surge in the state’s illegal immigrant population, public elementary and secondary schools across the state faced severe overcrowding issues. The situation was compounded by a recent period of economic depression, and local districts struggled to find adequate resources to sustain their public school programs. In an attempt to discourage illegal immigrants from sending children to public schools, the state legislature revised its education laws to withhold from local school districts state funds for educating the children of illegal aliens. An immigration advocacy group subsequently filed a federal suit challenging the constitutionality of the new law.
Should the court rule in favor of upholding the law?
A Yes, because it is rationally related to a legitimate state interest.
B Yes, because illegal aliens are not protected by the Fourteenth Amendment.
C No, because less restrictive alternative means are available.
D No, because it does not further a substantial state interest.
A
The correct answer is: No, because it does not further a substantial state interest.
Discussion of correct answer: State laws discriminating against legal aliens are subject to strict scrutiny, and those discriminating against illegal aliens are subject to rational basis review. However, the Supreme Court has established a special in-between rule for the children of illegal aliens. In Plyler v. Doe, the Court held that a stringent version of the rational basis test applies to evaluate a state law interfering with the right of illegal alien children to free public education. Under this test, the measure being challenged will not be upheld unless it furthers some substantial goal of the state. Because this answer applies the Plyler standard correctly, it is the best choice.
23
Q
A fitness instructor wanted to open a new gym in a city neighborhood known locally as “Fitnessville,” because of its many gyms, fitness studios, and juice bars. The man purchased an empty lot and submitted the appropriate plans to the city authorities for a building permit. The building inspector, backed by the city zoning and planning commission, denied the instructor’s application for a building permit, stating the following reasons in a written decision: (1) the local neighborhood could not sustain any further traffic entering and exiting the area; (2) the neighborhood already had 12 gyms of a similar nature, four of which would be on the same street and block as the proposed gym location; and (3) the location of the entrance to the planned gym was too close to a dangerous intersection. The fitness instructor requested an opportunity before the city zoning and planning commission to address each of these reasons for denying his building permit, but the city authorities replied that the decision was final. The fitness instructor then brought an appropriate action challenging the constitutionality of the city’s decision.
Which of the following provides the fitness instructor with the strongest argument?
A Procedural due process.
B The Contract Clause.
C The Privileges and Immunities Clause of the Fourteenth Amendment.
D The Takings Clause.
A
The correct answer is: Procedural due process.
Discussion of correct answer: Under the Fifth and Fourteenth Amendments, citizens are protected against the deprivation of life, liberty, or property without the due process of the law. Procedural due process guarantees notice and the right to be heard.
24
Q
A state enacted a statute that provided scholarships to students who attained high academic achievement and were from families with low or modest incomes. A portion of the statute stated that no part of the scholarship funds could be used by a student to pursue a degree in theology. This portion of the statute was reflective of the state’s constitution, which provided that no public money could be used to fund religious worship or studies. The scholarship aid was available to be used at religiously affiliated colleges, so long as the college was nationally accredited and the scholarship recipient did not pursue a degree in theology. A student eligible for the scholarship wished to attend a religiously affiliated college in the state, to pursue a degree in theology. When informed that he could not receive the scholarship and pursue a degree in theology, the student sued the state to enjoin it from refusing to award the scholarship. How should the court rule?
a. In favor of the student, because under strict scrutiny analysis, the state had singled out religion for unfavorable treatment, and the state’s anti-establishment concerns were not compelling.
b. In favor of the student, because a person’s religious beliefs are protected, and a government may not punish an individual by denying benefits or imposing burdens based on religious belief.
c. In favor of the state, because although the state’s funding of theological studies would be permitted under the Establishment Clause, the Free Exercise Clause did not require the state to do so.
d. In favor of the state, because under strict scrutiny analysis, while the state had singled out religious study for unfavorable treatment, the state’s anti-establishment concerns were compelling.
A
c. In favor of the state, because although the state’s funding of theological studies would be permitted under the Establishment Clause, the Free Exercise Clause did not require the state to do so.
25
Recent evidence reported in leading medical journals suggests that hearing loss affects 75% of citizens over the age of 70. A state legislature, concerned with increasing the quality of care to its senior citizens, passes a bill providing that only medical doctors with specialized training in audiology may prescribe and sell hearing aids. The law provides a "grandfather clause" however, exempting all currently registered vendors of hearing aids who have no medical training, as long as they remain in business. A doctor who operates a hearing clinic, brings suit challenging the "grandfather clause" exemption in the new statute. Is the exemption in the law for all currently registered vendors of hearing aids constitutional?
A. Yes, because the classification between existing and new vendors has a rational basis.
B. Yes, because those who lawfully engage in an occupation have a fundamental right to continue to do so.
C. No, because the statute denies the equal protection of the laws to those patients who purchase hearing aids from non-physicians.
D. No, because the statute denies non-physicians desiring to enter this occupation the equal protection of the laws.
A. Yes, because the classification between existing and new vendors has a rational basis.
26
The U.S. Congress enacts legislation providing for the reclassification of certain federal civil service jobs involving the Justice Department and nuclear weapons facilities, as well as the FBI and CIA. The legislation states in pertinent part that “persons engaged in work involving the development, design, testing, implementation, or maintenance of cryptographic systems or computerized weapons guidance systems shall be U.S. citizens. Aliens, except aliens with permanent resident status, are excluded.”
Which of the following is the strongest argument in support of the constitutionality of the legislation?
(A) The exclusion of aliens is justified by the compelling government interest in protecting national security.
(B) The exclusion of aliens is rationally related to a legitimate government interest in national security.
(C) The exclusion of aliens does not violate the privileges and immunities of Article IV.
(D) The exclusion of aliens is within the plenary power of the U.S. Congress in this area.
(B) The exclusion of aliens is rationally related to a legitimate government interest in national security.
27
The Department of Public Employment is responsible for initial screening of everyone seeking civil service employment with the state government. All applicants are given a standardized test and then undergo an oral interview by a panel of Department of Employment officers. The final step in the screening process is an individual interview with a Department of Employment counselor. The counselor tallies the scores from the test, the panel interview, and his or her own evaluation, and compares the total to the statutorily prescribed score range for the position the applicant is seeking. If the applicant's score is within the range, his or her application is forwarded as "approved" to the relevant state agency. Some counselors occasionally discuss with unsuccessful applicants the nature of their scores and the reasons why they fell short in particular areas. No statute, regulation, or departmental policy requires the counselors to inform the applicants of anything other than whether their application is or is not "approved." The number of applicants receiving the post-interview discussion is relatively small compared with the total processed by the Department of Employment. An applicant for employment with the state was informed following his individual interview that his application would not be forwarded "approved" to the state agency with which he was seeking a position. His counselor refused to discuss with him anything about his score or why he did not attain a score sufficient to be "approved."
If the applicant brings an action to compel the state to provide him with the information supplied to the applicants who do receive post-interview discussions, will he prevail?
A No, because he had no protectable property interest in being employed by the state.
B No, because the Tenth Amendment exempts state government employment from federal regulation.
C Yes, because the treatment of unsuccessful job applicants by the state violates the Equal Protection Clause.
D Yes, because the right to engage in gainful employment is a protected liberty interest within the operation of the Due Process Clause.
The correct answer is: No, because he had no protectable property interest in being employed by the state.
Discussion of correct answer: For constitutional law purposes, the Due Process Clauses limit government power to deprive a person of "liberty" or "property." The definition of the interests protected is not capable of precise formulation, but the notion of "property" includes more than ownership of tangible things or commercial value. It also encompasses interests in statuses or relationships that have important economic value. Generally, however, due process can only be invoked to protect a property interest to which the individual is already entitled. When the person first applies for the economic benefit--such as public employment--a protected due process property interest is not involved. In this question, the applicant is seeking employment with the state. He, therefore, has no property interest in public employment protectable by the Fourteenth Amendment Due Process Clause and will not be able to compel the state to afford him any due process procedures.
28
Congress recently enacted a statute prohibiting discrimination in the rental of residential property anywhere in the United States based on sexual orientation or preference by any person or entity, public or private. A landlord in State A has since refused to rent an apartment to two men who he suspects are gay.
If the men bring an action against the landlord challenging his actions, what constitutional provision would be most helpful for them in asserting their claim?
(A) The Thirteenth Amendment.
(B) The Commerce Clause.
(C) The Equal Protection Clause of the Fourteenth Amendment.
(D) The Due Process Clause of the Fourteenth Amendment.
(B) The Commerce Clause.
29
A county decided to revamp its voting procedures in order to streamline the process. The county ordered new touch-screen voting machines, solicited more volunteers for election days, lengthened voting hours, made vote-by-mail available to all residents, and enacted various other rules to help make sure that election days ran more smoothly. One new rule required people to check in at the polls at the table labeled with their party affiliation: Republican, Democrat, or Other. A voter in that county objected to this particular rule. She was a Democrat who sent her child to a school in her neighborhood that was very heavily populated with Republicans. She served on the board of the parent-teacher organization at the school. The voter did not wish for her party affiliation to be public in case it might cause controversy for herself or her child.
Assuming proper standing, if the voter challenges the constitutionality of the rule requiring voters to line up according to party affiliation at the polls, what is the likely outcome?
(A) The rule will be invalidated because it violates her right to privacy.
(B) The rule will be invalidated because it violates her procedural due process rights.
(C) The rule will be upheld because it passes strict scrutiny.
(D) The rule will be upheld because it passes the rational basis test.
(D) The rule will be upheld because it passes the rational basis test.
30
A particular state has funded abortions for low-income women as part of its state welfare program for the past 15 years. After a recent election cycle resulted in a shift in the makeup of the state's legislature, the state removed the provision allowing for the public funding for abortions. The removal is slated to become effective one year from the date of the enactment of the provision's repeal.
Is the removal of the provision constitutional?
A Yes, because the constitutional right to an abortion does not apply to the states, only to the federal government.
B Yes, because there is no constitutional right for low-income women to receive state-funded abortions.
C No, because the statute discriminates against low-income women on the basis of their poverty, in violation of the Equal Protection Clause of the Fourteenth Amendment.
D No, because the statute places an undue burden on a woman's right to have an abortion.
The correct answer is: Yes, because there is no constitutional right for low-income women to receive state-funded abortions.
Discussion of correct answer: This is actually a correct statement of the law, even though at first glance it might seem too stark of a rejection of the right to an abortion as recognized in Roe v. Wade [410 U.S. 113 (1973)] and reaffirmed in Planned Parenthood of Southeastern Pennsylvania v. Casey [505 U.S. 833 (1992)]. Current law prohibits the government from placing an undue burden on a woman's access to an abortion, but this rule does not require the government to pay for a woman's abortion, even if she is unable to pay for it herself without aid from the state [Maher v. Roe, 432 U.S. 464 (1977)].
31
A city's school board decided to redraw school zones and to assign students to different schools based on the students' race in order to achieve greater racial integration in the city's schools. Although the city's schools had never been subject to any segregation laws, they were extremely segregated. A coalition of white parents whose children had been reassigned to predominantly black schools brought a constitutional challenge to the school board's measures.
How is the court likely to rule?
A The school board may redraw school districts and assign students to schools based on the students' race.
B The school board may redraw school districts but may not assign students to schools based on the students' race.
C The school board may assign students to schools based on the students' race but may not redraw school districts.
D The school board may neither redraw school districts nor assign students to schools based on the students' race.
The correct answer is:The school board may redraw school districts but may not assign students to schools based on the students' race.
Discussion of correct answer:In Parents Involved v. Seattle [551 U.S. 701 (2007)], the Supreme Court held that a school district may not assign students to schools based on race in order to achieve racial integration when school segregation is not caused by past or present government action. School districts are, however, permitted to implement "structural" changes such as redrawing school districts or building new schools in order to achieve racial integration.
32
State X has a statute, enacted in 1923, that makes criminal "the utterance in any public place of any blasphemy or sacrilege.“ There have been only a few recorded prosecutions under the 1923 statute. In a speech delivered on a public sidewalk in state X, a citizen complained about local politicians and referred to her city's mayor as being "a goddamned idiot." Based on that speech, she was arrested and charged with violating the 1923 statute's proscriptions.
Which of the following constitutional defenses to this prosecution under the 1923 statute would be the LEAST likely to succeed?
a. This statute is vague and, therefore, violates the Fourteenth Amendment's Due Process Clause.
b. This statute is an establishment of religion and, therefore, violates the Fourteenth Amendment's Due Process Clause.
c. Application of this statute to the citizen denies her equal protection of the laws in violation of the FourteenthAmendment.
d. Application of this statute to the citizen denies her freedom of speech in violation of the Fourteenth Amendment.
c. Application of this statute to the citizen denies her equal protection of the laws in violation of the FourteenthAmendment.
33
A state university adhered to a strict academic policy of automatically expelling students whose cumulative GPAs fell below 1.9. Due to the stress of significant struggles within her personal life, a medical student attending the university received failing grades in all of her spring semester courses, bringing her cumulative GPA down to 1.89. Before the student was able to meet with professors and discuss her grades, she received a letter notifying her of expulsion from the university, effective immediately. Outraged by the school's lack of accommodation, the student filed a cause of action against the university, claiming the expulsion violated her Fifth and Fourteenth Amendment right to due process. In the suit, she requested the university afford her a hearing conducted by a panel of professors, where she could properly defend her right to continue attending the school.
Which of the following factors should not contribute to the court's evaluation?
A The cost of reserving facilities for such hearings.
B The cost of expulsion on a student's academic reputation.
C Whether GPA is an accurate gauge of achievement.
D Whether faculty members can take on additional duties.
The correct answer is: The cost of expulsion on a student's academic reputation.
Discussion of correct answer: Where there is a deprivation of one's life, liberty, or property interest (e.g., entitlement to public education), the Fifth and Fourteenth Amendments require procedural due process. To determine what process is necessary, a court should consider: (1) the private interest affected by the action; (2) the risk of erroneous deprivation of this interest through the procedures used, and the probable value of other procedures; and (3) the government's interest in streamlined procedures, including the function involved and the fiscal and administrative burdens that other procedures would entail. Here, the cost of the student's expulsion to her academic reputation does not fall under any of these categories. Additionally, the Supreme Court has held that injury to reputation is not a deprivation of an interest requiring procedural due process. Therefore, this is the best choice.
34
A 68-year-old man drove his car into a restaurant while attempting to leave the parking lot. A police investigation showed that the man confused the accelerator for the brake pedal, causing his car to jump the curb and break through a large window. No one was hurt in the accident. However, the man’s license was revoked pursuant to a state law requiring all drivers over the age of 65 who are involved in a serious accident to have their licenses
revoked until they take another driving test. The man is a retired doctor who now volunteers by driving to the homes of patients who are otherwise unable to receive medical treatment. The man was now unable to attend to these patients due to the revocation of his license. He brought suit against the state challenging the automatic revocation of his license without his first having an opportunity to present evidence on the accident at the restaurant.
How should the court rule?
(A) For the man, because a pre-termination hearing is required.
(B) For the man, because his Fourteenth Amendment rights have been violated.
(C) Against the man, because he is now retired.
(D) Against the man, because he received adequate due process.
(D) Against the man, because he received adequate due process.
35
Congress enacts a statute punishing "all stores of any kind for refusing service to African Americans solely because of their race." Under which of the following constitutional provisions is the authority of Congress to pass such a statute most clearly and easily justifiable?
a. The Commerce Clause.
b. The General Welfare Clause of Article I, Section 8.
c. The Thirteenth Amendment.
d. The Fourteenth Amendment.
c. The Thirteenth Amendment.
36
A state redistricted its state representative districts. The redistricting had a greater effect in urban areas than in rural areas. Several Democratic activists who live in the affected area sued certain state officials in federal court to challenge the redistricting. They contended that the redistricting diluted, or even eliminated, two "safe" Democratic seats in the state legislature, while leaving "safe" Republican seats untouched. The state officials filed a motion to dismiss. How should the court rule?
a. Motion granted, because gerrymandering and redistricting on the basis of political party are not justiciable by federal courts.
b. Motion granted, because the plaintiffs lack standing.
c. Motion denied, because this is an appropriate subject for a federal court to give an advisory opinion.
d. Motion denied, because gerrymandering and redistricting on any basis is a justiciable question.
a. Motion granted, because gerrymandering and redistricting on the basis of political party are not justiciable by federal courts.
37
A state legislature, in an attempt to curb teen pregnancies, recently enacted a statute denying welfare assistance to parents for illegitimate children. A young woman was receiving welfare assistance after being awarded sole custody of her two children following her divorce several years earlier. She recently gave birth to a third child and applied for an increase in her welfare assistance as a result. However, her request was denied pursuant to the state law. The woman sued the state, claiming that the law was unconstitutional and violated the Equal Protection Clause.
Which of the following correctly states the burden of persuasion in this case?
A The woman has the burden of persuading the court that the statute is not necessary to further a compelling interest.
B The woman has the burden of persuading the court that the statute is not substantially related to achieve an important government interest.
C The state has the burden of persuading the court that the statute is substantially related to achieving an important government interest.
D The state has the burden of persuading the court that the statute is rationally related to a legitimate government interest.
The correct answer is: The state has the burden of persuading the court that the statute is substantially related to achieving an important government interest.
Discussion of correct answer: Intermediate scrutiny applies to government action using quasi-suspect classifications, such as gender and illegitimacy. Here, the statute treats legitimate and illegitimate children differently. As such, it will be subjected to the intermediate scrutiny standard. Under this standard, the burden is on the state to prove that the measure being challenged is substantially related to the achievement of an important government interest.
38
The state of Arizona experienced a rising trend in specialty car companies selling their automobiles directly to consumers--i.e., without going through the traditional franchised car lot. At the same time, franchised car dealers across the state began to suffer a decline in sales. In response to these dealers' complaints of unfair competition, the Arizona state legislature enacted a new consumer protection regulation that effectively banned all direct sales of automobiles within the state. One direct-sale company, a maker of luxury electric cars, contended that the regulation created a protected market and refused to comply.
If this company challenges enforcement on substantive due process grounds, should the court uphold the regulation?
A No, if the company shows it lacks a rational connection to a legitimate government interest.
B No, if the company shows it lacks a substantial relation to an important government interest.
C Yes, if the state shows it is substantially related to a compelling government interest.
D Yes, if the state shows it is rationally related to a legitimate government interest.
The correct answer is: No, if the company shows it lacks a rational connection to a legitimate government interest.
Discussion of correct answer: Generally, the substantive due process doctrine is used to evaluate government regulations that affect fundamental rights of personhood. However, economic regulations may also be challenged as violative of substantive due process guarantees. The Supreme Court has held that challenges to economic regulations on substantive due process grounds are to be subjected to deferential rational basis scrutiny, with a challenger having the burden of proving that a regulation lacks a rational connection to a legitimate government interest. Here, the company is challenging enforcement of an economic regulation on substantive due process grounds. Therefore, it bears the burden of proof and must show that the regulation lacks a rational connection to a legitimate government interest.
39
A federal statute requires U.S. civil service employees to retire at age 75. However, that statute also requires federal district court clerks to retire at age 65. The plaintiff, a 65-year-old federal district court clerk, seeks a declaratory judgment that would forbid his mandatory retirement until age 75. What is the strongest argument that the plaintiff can make to invalidate the requirement that he retire at age 65?
A. The law denies him a privilege or immunity of national citizenship.
B. The law deprives him of a property right without just compensation.
C. The law is not within the scope of any of the enumerated powers of the U.S. Congress.
D. The law invidiously discriminates against him on the basis of age in violation of the Fifth Amendment.
D. The law invidiously discriminates against him on the basis of age in violation of the Fifth Amendment.
40
State Red enacted a statute prohibiting any motor vehicle traveling within the state to have window tinting or glass coating of any kind. The bill passed the state legislature at the urging of state and local law enforcement agencies who argued that tinted windows prevented them from observing interior car activity. Most citizens also supported the bill, especially after a state trooper was killed by an occupant in a window-tinted limousine. The trooper was unable to see that his assailant was armed and dangerous when he approached the vehicle for a speeding violation. A limousine company operates a limo service in a neighboring state. The limousine company has a fleet of 68 limos, all of which have tinted windows. Each year the limousine company makes thousands of trips into State Red to transport passengers to the international airport, situated ten miles from the state border, and other destinations. Because all its limousines are manufactured with tinted windows, the limousine company will incur a great expense to specially order limousines without tinting. The limousine company sues to challenge the constitutionality of the State Red statute. Which of the following is the limousine company’s most useful argument?
a. Because window tinting is permitted on vehicles in neighboring states, this law denies the limousine company the equal protection of laws whenever its limousines operate within the state.
b. Because this law burdens interstate commerce by prohibiting all vehicles with window tinting from entering the state, this law violates the commerce clause.
c. Because window tinting on vehicles is legal in the limousine company’s state, this law violates the contract clause by preventing the limousine company from fulfilling its obligation to transport passengers into the state.
d. Because interstate travel is a fundamental right that may not be burdened by state law, it violates the limousine company’s substantive due process rights by arbitrarily and unreasonably regulating economic activity.
b. Because this law burdens interstate commerce by prohibiting all vehicles with window tinting from entering the state, this law violates the commerce clause.
41
An architect purchased a 5-acre undeveloped residential lot, with plans to erect his dream home there. Four months later, the state legislature enacted a law aimed at protecting an indigenous bird species from being dislocated from its native nesting grounds. As part of this law, many parcels of land across the state, including the architect's, were subject to a prohibition on the erection of permanent structures. Thereafter, the architect filed a cause of action challenging the construction ban, on the grounds that the law violated the Fifth and Fourteenth Amendments.
Which of the following is the architect's strongest argument?
A The law causes a direct appropriation of the land.
B The law lacks a logical nexus to government objectives.
C The law does not substantially advance legitimate state interests.
D The law effectuates a total taking by the government.
The correct answer is: The law effectuates a total taking by the government.
Discussion of correct answer: Pursuant to the Takings Clause of the Fifth Amendment (applicable to the states through the Fourteenth Amendment), private property may not be taken for public use without just compensation. The Supreme Court has held that the Takings Clause applies to land-use regulations that deny owners of all reasonable, economically beneficial uses of their land. Such deprivation constitutes a "total taking" triggering the just compensation requirement. Here, the construction ban deprived the architect from all economically beneficial use of his residential lot. Because the architect has suffered a taking, this answer is the best choice.
42
A state university offers a merit scholarship to those high school students who scored above a certain score on their SATs. Resident aliens are not eligible for this scholarship. A student is a legal resident of the state, but is not a citizen of the United States. He has been denied this scholarship solely because of his alien status.
If the student should challenge the constitutionality of his exclusion from the program, will he win?
A Yes, because the action of the state violates the Privileges and Immunities Clause of Article IV of the Constitution.
B Yes, because there is not sufficient justification to discriminate against aliens as a class.
C No, because aliens are not per se a discreet and insular minority; therefore, a classification excluding them is valid.
D No, because the exclusion is rationally related to legitimate state purposes.
The correct answer is: Yes, because there is not sufficient justification to discriminate against aliens as a class.
Discussion of correct answer: The state may discriminate against aliens only in specific matters relating to the governmental process, such as the denial of a right to run for elective office or to hold a position as a police officer or probation officer or a public school teacher. In all other cases, a state's attempt to discriminate against persons based on alienage will be subject to the strict scrutiny test because alienage is a suspect classification. There is no compelling justification for denying the student the same educational opportunities offered to other residents of the state.
43
In the wake of a recent presidential election mishap that garnered national media coverage, a state revamped its voting procedures in an attempt to streamline the process. Among the many changes the state instituted were vote-by-mail, same-day voter registration, and the requirement that voters check in (or register) at the table labeled with their party affiliation. One couple in the state, who were very active within their local community, were registered Republicans in a heavily Democratic district. The couple did not wish for their party affiliation to be made public, fearing repercussions. The couple challenged the constitutionality of the rule requiring voters to check in or register according to party affiliation.
Assuming proper standing, should the court invalidate the rule?
A No, because it passes strict scrutiny.
B No, because it passes the rational basis test.
C Yes, because it violates their procedural due process rights.
D Yes, because it violates their right to privacy.
The correct answer is: No, because it passes the rational basis test.
Discussion of correct answer: The court is likely to uphold this rule, because the state will only need to show a rational relationship between the rule and the objective to streamline voting procedures. Strict scrutiny applies when the government restricts the right to vote, a right that has been held to be fundamental under the Constitution. However, rational basis scrutiny applies to reasonable restrictions based on things like age or duration of residency. Moreover, voter registration requirements and regulation of the time, place, and manner of casting ballots are valid so long as they do not impose an undue burden on the right to vote. Here, there is no restriction at all on the right to vote, other than the concern that others will know your party affiliation. Because the state made vote-by-mail an option for everyone and because voter registrations are public records anyway, it seems very unlikely that this rule will be held to violate the Constitution. There is no constitutionally protected privacy right as to party affiliation.
44
The state legislature enacted a statute requiring permanent removal from parental custody of any child born to a mother currently receiving state welfare payments. A young mother recently lost her job and had been receiving state welfare assistance. She now has given birth to her second child and the state brought an action under the statute to terminate her custody rights solely because she was receiving the state welfare payments. Her defense is based on the ground that the statute is unconstitutional as applied.
Which is the most probable burden of persuasion on this constitutional issue?
A The state has the burden of persuading the court that the application of the statute to the mother is necessary to vindicate a compelling government interest.
B The state has the burden to persuade the court that the application of the statute to the mother is rationally related to a legitimate government interest.
C The mother has the burden of persuading the court that the application of the statute to her conduct is not necessary to vindicate an important state interest.
D The mother has the burden of persuading the court that the application of the statute to her conduct is not rationally related to a legitimate state interest.
The correct answer is: The state has the burden of persuading the court that the application of the statute to the mother is necessary to vindicate a compelling government interest.
Discussion of correct answer: When a fundamental right is infringed, the government has the burden of showing that the infringement is necessary to advance a compelling government interest. Here, the mother is threatened with the denial of custody of her child because of her receipt of welfare payments. The Supreme Court has recognized a fundamental right to live with the members of your own family [Moore v. City of East Cleveland, 431 U.S. 494 (1977)]. When the government infringes on a fundamental right, it has the burden to show that its action is necessary to achieve a compelling government interest. This choice correctly states this rule.
45
A new law enacted by a state legislature required every couple applying for a license to be married in the state to attend a series of six weekly seminars before the wedding. The seminars, run by psychologists and relationship counselors, covered topics like communication and conflict resolution between spouses. If a plaintiff challenges the constitutionality of the statute, will the plaintiff have the burden of persuasion?
A. Yes, because there is a strong presumption that elected state legislators acted properly.
B. Yes, because the Tenth Amendment authorizes states to determine the conditions on which they issue marriage licenses.
C. No, because the statute has a substantial impact on the fundamental right to marry.
D. No, because there is a substantial impact on the discrete and insular class of young adults, who are the ones most likely to be burdened by this requirement.
C. No, because the statute has a substantial impact on the fundamental right to marry.
46
A student lives in a rural county and attends the county high school, where he is an outstanding student. The school district in which the high school is located has been rated “poor” by the state Department of Education because its programs are underfunded and the achievement test scores of its students are well below the state average. The student, a sophomore, has already taken all the advanced courses in science, mathematics, and English. The student would like to attend a public high school in a wealthy suburb, because the school offers college-level science and math courses and has the best public school academics in the state. The state funds programs at the schools in proportion to their respective population, on a per pupil basis. The student’s grandmother offers to let him stay with her temporarily during the week in her small home in the wealthy suburb so that he can attend the high school there. The student attends the school for two weeks, until it is discovered that his parents live in the next county, and he is told not to return to class.
If the student sues the state in federal court for the right to attend the suburban high school, assuming proper standing, what is the likely outcome?
(A) The student will prevail, because his equal protection rights are violated by the education he is receiving at the rural county high school.
(B) The student will prevail, because his right to travel is violated by his dismissal from the suburban school.
(C) The state will prevail, because there is a rational basis for the state’s allocation of funds for public education based on residency
(D) The state will prevail, because the state’s action passes the strict scrutiny test.
(C) The state will prevail, because there is a rational basis for the state’s allocation of funds for public education based on residency
47
A state legislature passed a bill that prohibited doctors from performing a dilation and curettage upon female patients who had entered their second trimester of pregnancy. Dilation and curettage is a common gynecological procedure in which a sharp instrument is used to remove tissue from inside the uterus. It is rarely used for surgical abortion performed in the first 12 weeks (or first trimester) of a pregnancy, but more commonly used in second trimester abortions. The governor of the state signed the bill into law. Several women and doctors sued to enjoin the enforcement of this statute.
Assuming proper standing, how should the court rule?
A In favor of the state, because a state can regulate the abortion procedure during the second trimester in ways that are reasonably related to the woman's health.
B In favor of the state, because a state may regulate and even proscribe abortion except where it is necessary to preserve the woman's life or health.
C In favor of the plaintiffs, because a dilation and curettage is not necessarily reasonably related to the woman's health, so the state may not regulate abortion in this way during the second trimester.
D In favor of the plaintiffs, because the statute places substantial obstacles in the way of a woman's right of access to abortion before a fetus attains viability.
The correct answer is: In favor of the plaintiffs, because the statute places substantial obstacles in the way of a woman's right of access to abortion before a fetus attains viability.
Discussion of correct answer: Planned Parenthood of Southeastern Pennsylvania v. Casey [505 U.S. 833 (1992)] largely reshaped the law of abortion that stood for many years under Roe v. Wade [410 U.S. 113 (1973)]. The Casey holding modified the trimester approach of Roe and instead adopted an undue burden standard. A woman has a protected privacy interest in choosing to have an abortion before viability (in the first two trimesters). With regard to pregnancy subsequent to viability, the U.S. Supreme Court reaffirmed Roe in concluding that the "State may regulate, and even proscribe abortion except where it is necessary for the preservation of the life or health of the mother." Here, as the effect of the law would be to place a substantial obstacle in the way of a pre-viability abortion, it is unconstitutional.
48
In an effort to work towards change in his community, an alien ran for a position on the local city council. The man's name was not included on the ballot because of a statute which prohibits aliens from holding positions on the city council. The man challenged the statute as violating the Equal Protection Clause. The city claimed the statute was justified because city council members influence community members' views toward government. The case went to the Supreme Court to determine whether the statute was constitutional. How should the Supreme Court rule?
A. The statute is constitutional, because the city council performs a function of the government.
B. The statute is constitutional, because aliens do not have constitutional rights.
C. The statute is unconstitutional, because the statute does not pass intermediate scrutiny.
D. The statute is unconstitutional, because the law furthers no compelling state interest.
A. The statute is constitutional, because the city council performs a function of the government.
49
In the latest of a long series of government corruption scandals, a state employee was convicted in federal court of taking kickbacks in exchange for influencing government contract decisions. The employee was sentenced to time served plus probation, fined heavily, and given a significant amount of community service. The employee resigned from his position in the government and began to collect his pension, for which he had fully qualified after spending several decades in government service.
The media began to lash out against the state government for what it viewed as lax punishment by a corrupt government. In response, the state legislature passed, and the governor signed into law, a bill which stripped former government employees of any retirement or other benefits or payments of any kind from the state if the employee was convicted of bribery or corruption, declaring that such a conviction amounted to breach of the government official's employment contract.
As a result of the new law, the state employee was notified that the state was immediately discontinuing pension benefit payments to him on account of his conviction. The state employee then properly filed a lawsuit challenging the termination of his retirement benefits on the grounds that the new law was unconstitutional.
Which of the following is the best argument the state could make in favor of the law's constitutionality?
A The notification that the state employee received was sufficient notice to satisfy due process for the discontinuation of pension benefits.
B Deprivation of pension benefits is not cruel and unusual punishment.
C It is implicit that one of the conditions of the state's contract of employment with a government official is that he shall not take kickbacks or otherwise engage in bribery.
D The state employee was afforded an opportunity to express his views about the new legislation at public hearings prior to the enactment of the statute.
The correct answer is: It is implicit that one of the conditions of the state's contract of employment with a government official is that he shall not take kickbacks or otherwise engage in bribery.
Discussion of correct answer: This question requires a two-step analysis to select the best alternative. First, you must determine the constitutional issue involved. Second, you must apply the appropriate constitutional principle to the question asked--i.e., the state's best argument against a constitutional challenge to the forfeiture statute. This answer choice is correct because the argument concerning a condition of employment contract with a government official affects the Contract Clause of the Constitution. The state employee could validly challenge the constitutionality of the statute, alleging unconstitutional impairment of the obligation to contract. The pension forfeiture statute would be violative of the Contract Clause because under the circumstances, the state employee has satisfied the conditions of retirement eligibility (he was fully qualified for his pension, as stated in the facts). His retirement pay has ripened into a full contractual obligation and has become a vested right. Therefore, the pension forfeiture statute would be an unconstitutional impairment of his vested right to receive retirement benefits (his pension).
50
A fast-food ethnic restaurant chain wanted to construct a restaurant on Route 44, a business-zoned, secondary road running through the town. It purchased a buildable lot with sufficient frontage and submitted engineering and architectural plans to the appropriate town authorities. The building inspector, backed by the town planning board, denied the restaurant chain's application for a building permit, stating the following reasons in a written decision: (1) Route 44 cannot sustain any further traffic entering and exiting businesses on the road; (2) Route 44 currently has 17 fast-food restaurants, five of which are in the immediate vicinity of the chain's planned location; and (3) the location of the entrance to the planned chain eatery is too close to a dangerous intersection. In a letter to the town planning board members and building inspector, the fast-food chain requested an opportunity to address each of the stated reasons for the denial of the building permit, but the town authorities responded that the decision was final. The chain then sought a declaratory judgment of its right to address the permit denial.
If the chain obtains declaratory relief, what provision would provide the strongest argument?
A Substantive due process.
B Equal protection.
C The Takings Clause.
D The Fourteenth Amendment.
The correct answer is: The Fourteenth Amendment.
Discussion of correct answer: The fact pattern's last sentence explicitly tells us that the chain seeks declaratory judgment of "its right to address the permit denial." The fact pattern's penultimate sentence makes clear that the chain wants an opportunity to be heard, but that the town authorities have refused that request. Thus, the chain's lawsuit implicates a right protected by procedural due process. Moreover, because the chain is challenging the refusal of a local government--and not the federal government--the Fourteenth Amendment (and its Due Process Clause) is the applicable provision.
51
A state required aspiring applicants who wished to become managers in any state agency to take a "management potential" exam that consisted of 200 multiple-choice questions in six hours. The questions measured literacy, knowledge of state procedures, and judgment of possible courses of action in hypothetical management situations such as employee relations and interviewing. The racial composition of the applicant pool for management candidates was 54% Hispanic and 46% other racial minorities. Historically, 65% of Hispanic applicants passed the exam, while only 20% of all other racial minority applicants passed the exam. Caucasians, who constituted 11% of the population in the state, were deemed a racial minority under state law. As a result of the exam requirement, the management of all state agencies was disproportionately composed of Hispanic females, compared to both the proportion of other minority applicants and the proportion of non-Hispanic minorities in the population of the state as a whole. A group of non-Hispanic racial minorities challenged the exam requirement as unconstitutional.
Is the state's "management potential" exam requirement constitutional?
A Yes, because there is no evidence of intentional race discrimination in the administration of the exam.
B Yes, because a state police power includes the right to prescribe qualifications for state employees, including members of its agency's management.
C No, because the "management potential" exam disadvantages some racial minorities and does not meet the requirements of strict scrutiny.
D No, because the test has a disparate impact on the success of racial minority candidates.
The correct answer is: Yes, because there is no evidence of intentional race discrimination in the administration of the exam.
Discussion of correct answer: In Washington v. Davis [426 U.S. 229 (1976)], the Supreme Court held that race-neutral qualifications for state offices did not trigger heightened (i.e., intermediate or strict) scrutiny in the absence of evidence of a discriminatory purpose. In Davis and other cases, the Court has made clear that a disproportionate impact on distinct racial groups, standing alone, is insufficient to show intentional discrimination and trigger heightened scrutiny. Here, there is no evidence of intentional race discrimination other than the disproportionate impact, and so the exam requirement is constitutional.
52
A state resident could purchase a license solely for hunting elk for $9.00. A nonresident, in order to hunt elk, was required to purchase a combination license at a cost of $225.00; this entitled him to take one elk, one deer, and one black bear. A nonresident, however, could obtain a license restricted to deer for $51.00. A resident was not required to buy any combination of licenses, but if he did, the cost to him of all the privileges granted by the nonresident combination license was $30.00.
Due to its successful management program for elk, the state has not been compelled to limit the overall number of hunters by means of drawings or lotteries, as have other states. Elk are not hunted commercially in the state. Nonresident hunters seek the animal for its trophy value; the trophy is the distinctive set of antlers. Whereas the interest of resident hunters more often may be in the meat, among nonresident hunters, big-game hunting is clearly a sport in the state.
Two residents of another state bring suit against the state. They assert in their complaint that the disparities between residents and nonresidents in the state hunting license system is unconstitutional.
How should the court rule on the state's hunting license system?
A The license system is constitutional, because it is within the police power of a state to regulate a recreational, noncommercial activity.
B The license system is constitutional, because there is a compelling state interest.
C The license system is unconstitutional, because it violates the Privileges and Immunities Clause of Article IV, Section 2.
D The license system is unconstitutional, because it violates the Equal Protection Clause of the Fourteenth Amendment.
The correct answer is: The license system is constitutional, because it is within the police power of a state to regulate a recreational, noncommercial activity.
Discussion of correct answer: In Baldwin v. Montana Fish and Game Commission [436 U.S. 371 (1977)], the U.S. Supreme Court held that the Montana elk-hunting licensing scheme, as applied to nonresidents, was not a fundamental right under the Privileges and Immunities Clause of Article IV, Section 2. Furthermore, the Court majority found no discrimination in the distinctions drawn between residents and nonresidents under the Equal Protection Clause of the Fourteenth Amendment. The Supreme Court concluded that protection of the wildlife of a state is peculiarly within the police power of the state. The court also noted that the elk-hunting licensing scheme did not violate petitioners' "privileges and immunities" because hunting (on the part of non-Montana residents) was primarily a recreational endeavor. Choice (B) is incorrect. The reference to "compelling state interest" suggests that the court will apply strict scrutiny, but this is doubtful under Baldwin. Choice (C) is incorrect for the reasons stated in the discussion of choice (A), above. Finally, choice (D) is incorrect. The Equal Protection Clause provides heightened protections for groups whose legal classifications are suspect (e.g., classifications based on race, ethnicity, nationality, and religion) and for groups whose legal classifications are quasi-suspect (e.g., gender and illegitimacy). The residents may have been the subject of discrimination by the state, but they are not members of a suspect or quasi-suspect class. Only rational review will be applied, which the state probably will pass with ease.
53
A state seeking to lower the rate of divorce as well as the expenditures relating to state-supported welfare programs for children of young parents, enacted a statute requiring that all people under the age of 22 wishing to obtain marriage licenses had to submit to six hours of pre-nuptial counseling and further requiring that a magistrate interview the couple and sign off on the license application before the application could be issued. A young couple whose application for a license was denied filed suit seeking to declare the statute unconstitutional on the grounds that it restricts a fundamental right.
Which of the following factors regarding the statute is a court least likely to consider in determining whether the statute is constitutional?
A The state determined that the cost and time involved with adjudicating domestic cases involving people who married prior to turning 22 to be so great that it threatened to completely disrupt the state's domestic court system.
B The state will require all citizens under the age of 22 who wish to obtain a marriage a license to submit to the requirements, regardless of race, gender, or sexual preference.
C That state intended the law only to apply to citizens under the age of 22 due to the fact that citizens over the age of 22 have a significantly lower rate of divorce and of having children dependent on welfare programs than the rest of the population.
D The state undertook an exhaustive study to determine that the six hours of counseling and interview with the magistrate was the minimum amount of time and resources necessary to create any significant impact on divorce rates among those who marry at a young age.
The correct answer is: The state will require all citizens under the age of 22 who wish to obtain a marriage a license to submit to the requirements, regardless of race, gender, or sexual preference.
Discussion of correct answer: The right to marry is a fundamental right under the U.S. Constitution, and thus laws that restrict that right will be subject to strict scrutiny. To pass strict scrutiny, a law must be justified by a compelling government interest, be narrowly tailored to achieve that goal or interest, and be the least restrictive means for achieving that interest. The fact that the requirements will apply to all citizens under the age of 22 does not factor into the strict scrutiny test.
54
An environmental activist group vehemently opposed the planned expansion of an oil pipeline that would take it through a wildlife preserve. Despite long periods of protests and media coverage, the oil company was nevertheless granted all of the necessary state and federal permits and permissions to go ahead. Deciding that nonviolent protests were not enough, a splinter faction of the environmentalist group decided to take a more hands-on approach. Late one night when nobody was present, the faction detonated blasting caps on a nearby mountain that caused a small avalanche above the oil company's supply cache. The falling rocks destroyed material and machinery and blocked necessary roads into and out of the wildlife preserve, costing the oil company millions of dollars and months of delay while it had to clear and rebuild many roads.
Thereafter, the state legislature enacted a law restricting the rights of members of the environmentalist group in several ways, one of which was excluding members of the group from holding elected office in the state or working for a government agency or contractor. A representative justified the legislation on the grounds that "ours is a peaceful state, and these verminous scum clearly have no place here." Several members of the group who did not participate in the blasting were soon informed that they would no longer be allowed to remain in elected positions, including a city council member and a county school board official.
If the members challenges the constitutionality of the legislation in court, what is the likely outcome?
A The members will prevail, because the law is a bill of attainder.
B The members will prevail, because they did not engage in violence as a member of the group.
C The state will prevail, because it acted within its police power.
D. The state will prevail, because the group is a subversive organization.
The correct answer is: The members will prevail, because the law is a bill of attainder.
Discussion of correct answer: A bill of attainder punishes named individuals or easily ascertainable members of a group without the benefit of judicial trial. Article I, Section 9, Clause 3 of the U.S. Constitution states: "No bill of attainder...shall be passed"; and Article I, Section 10, Clause 1 provides: "No state shall pass any Bill of Attainder." These apply to states as well as the federal government. The state legislation in this question is a bill of attainder because it amounts to legislative punishment for membership in the environmental activist group. Members of the group, such as those in question, are prohibited from holding elective office or being employed by the government or government contractors without a judicial determination of their right to serve. The legislation is therefore unconstitutional.
55
A state owned vast tracts of woodlands containing highly desirable lumber, and provided licenses to businesses to exploit these resources, with various regulations in place to ensure that a certain percentage of them would be preserved and the woodlands would not be completely depleted. State building codes required that a minimum of 10% of the lumber used by construction companies be the highly desirable, locally sourced lumber, and in-state commercial enterprises could obtain a license from the state to cut timber up to a set amount for an annual fee of $7,500. Out-of-state commercial enterprises, which made up only about small fraction of the lumber industry in the state, could obtain a license for an annual fee of $20,000, but were permitted to remove 10% more lumber than in-state businesses, a difference which enabled those nonresident enterprises to make a profit greater than the difference in license costs. The schemes were adopted after research showed that they would keep the level of exploitation at or below the rate of regrowth without requiring the state to resort to a lottery system for available licenses, which would have been administratively costly and burdensome.
A nonresident commercial enterprise sued the state claiming that the disparities in the licensing and regulatory scheme were unconstitutional.
How should the court rule on the state's resource management system?
A The license system is constitutional, because it is within the police power of a state to regulate and preserve state-owned natural resources.
B The license system is constitutional, because there is a compelling state interest.
C The license system is unconstitutional, because it violates the Equal Protection Clause of the Fourteenth Amendment.
D The license system is unconstitutional, because it violates the Privileges and Immunities Clause of Article IV, Section 2.
The correct answer is: The license system is constitutional, because it is within the police power of a state to regulate and preserve state-owned natural resources.
Discussion of correct answer: In Baldwin v. Montana Fish and Game Commission [436 U.S. 371 (1977)], the U.S. Supreme Court held that the protection of the wildlife of a state is peculiarly within the police power of the state. Furthermore, the Court later held that discrimination against nonresidents will be given special consideration if its purpose is the preservation of natural, state-owned resources [Sporhase v. Nebraska, 458 U.S. 941 (1982)]. Because the purpose of the disparate licensing schemes was to allow the limited exploitation of natural resources, these schemes will likely be found constitutional.
56
The state has a statute that prohibits "all speech making, picketing, and public gatherings of every sort in front of the main entryway to any government building during high traffic periods while the government building is being used for official government business." Which of the following possible plaintiffs would be most likely to be able to obtain an adjudication on the merits in a federal court on the validity of this statute?
a. A state taxpayer in the highest tax bracket.
b. A school administrator who intends to make a campaign speech at the administration building entryway during a prohibited time.
c. A legislator who voted against the statute because he thought it unconstitutional.
d. An organization whose purpose was "to seek judicial invalidation of unconstitutional laws."
b. A school administrator who intends to make a campaign speech at the administration building entryway during a prohibited time.
57
A state recently passed a bill implementing additional security measures at public buildings. The bill provided that anyone entering a public building must (1) present a picture identification and (2) have all possessions screened by a metal detection device. Anyone not presenting a valid picture identification would be denied admittance to the public building. After the bill went into effect, it became apparent that a disproportionate number of racial and ethnic minority members were adversely affected by the measure because they were unable to furnish a valid form of identification. A plaintiff who is Native American was denied admittance at the state capitol building because he didn’t have a valid picture identification. The plaintiff, who had an appointment to see the governor to discuss Native American rights, was humiliated and embarrassed by the incident.
If the plaintiff brings suit challenging the constitutionality of the state law, which of the following correctly states the burden of persuasion?
(A) The initial burden is on the plaintiff to show a discriminatory purpose, and, if proven, the burden shifts to the state to show the measure is rationally related to a legitimate state interest.
(B) The initial burden is on the plaintiff to show a discriminatory purpose, and, if proven, the burden shifts to the state to show the measure furthers a compelling state interest
(C) Since the law discriminates against members of racial and ethnic minorities, the state has the burden to show that it furthers a compelling governmental interest.
(D) Since the law is designed to protect institutional safety and public welfare, the state has the burden to show that it is rationally related to a legitimate governmental interest.
(B) The initial burden is on the plaintiff to show a discriminatory purpose, and, if proven, the burden shifts to the state to show the measure furthers a compelling state interest
58
In 1907, the State amends its criminal code to provide that upon conviction for any felony or misdemeanor involving "moral turpitude," the penalties shall include forfeiture of the right to vote. The bill was introduced by its sponsor as an "attempt to protect the security and dignity of the White Man's Government"; the bulk of the legislative history is to a similar effect. The law remains in effect today. Contemporary data indicates that those disenfranchised under the law are disproportionately poor and members of racial minority groups: relatively poor citizens of the State (those with incomes below 200 percent of the poverty level) are four times more likely to be disenfranchised under the law than those who are not poor, and African-American citizens of the State are three times more likely to be disenfranchised under the law than white citizens. A class of individuals disenfranchised under the law argues that it violates the Constitution.
Which of the following is their strongest argument against the law?
A The law irrationally discriminates among similarly situated classes of offenders.
B The law discriminates against poor citizens, and is not narrowly tailored to the achievement of compelling governmental interests.
C The law manifests an original intent to discriminate based on race and the contemporary effects of such discrimination, and as such, is presumptively unconstitutional.
D The law violates the Nineteenth Amendment.
The correct answer is: The law manifests an original intent to discriminate based on race and the contemporary effects of such discrimination, and as such, is presumptively unconstitutional.
Discussion of correct answer: This answer choice is correct, as past evidence of discriminatory intent, coupled with current evidence of discriminatory impact, may be enough to prove purposeful discrimination. As a test tip, the motivation of the law maker is always important. Clear evidence of racial discriminatory intent in the legislative record will make the law unconstitutional.
59
After driving his car up a curb and hitting a streetlight, an accident for which he was found to have been at fault after a trial, a 70-year-old retiree had his driver's license automatically revoked pursuant to a state law requiring all drivers over the age of 65 who are involved in a serious accident to have their licenses revoked until they complete a safety course and pass another driving test. The retiree was a handyman who now volunteered by going to the homes of people who could not afford to hire someone to make various repairs. The man was now unable to help these indigent people due to the revocation of his license. He brought suit against the state challenging the automatic revocation of his license without his first having an opportunity to present evidence on the accident to the state's department of motor vehicles.
How should the court rule?
A Against the retiree, because he is now retired.
B Against the retiree, because he received adequate due process.
C For the retiree, because a pre-termination hearing was required before his license could be revoked.
D For the retiree, because his Fourteenth Amendment rights were violated.
The correct answer is: Against the retiree, because he received adequate due process.
Discussion of correct answer: The deprivation of a driver's license is a property interest protected by the Fourteenth Amendment [Bell v. Burson, 402 U.S. 535 (1971)]. However, the Supreme Court has found that there is a substantial public interest in administrative efficiency which would be impeded by the availability of a pre-termination hearing in every case. Especially when there is an opportunity for the validity of the plaintiff's fault to be determined in a prior setting, the automatic suspension or revocation of a driver's license does not violate a plaintiff's procedural due process rights when weighed against the important public interest in safety on the roads and highways, and the prompt removal of a safety hazard [Dixon v. Love, 431 U.S. 105 (1977)]. As such, the man's procedural due process rights were not violated in this case.
60
A federal statute requires U.S. civil service employees to retire at age 75. However, that statute also requires federal district court clerks to retire at age 65. The plaintiff, a 65-year-old federal district court clerk, seeks a declaratory judgment that would forbid his mandatory retirement until age 75.
What is the strongest argument that the plaintiff can make to invalidate the requirement that he retire at age 65?
A The law denies him a privilege or immunity of national citizenship.
B The law deprives him of a property right without just compensation.
C The law is not within the scope of any of the enumerated powers of the U.S. Congress.
D The law invidiously discriminates against him on the basis of age in violation of the Fifth Amendment.
The correct answer is: The law invidiously discriminates against him on the basis of age in violation of the Fifth Amendment.
Discussion of correct answer: Of the four choices provided, only this choice has any chance of success. When the federal government discriminates in a manner that would raise an equal protection issue, a court will examine it based on the Fifth Amendment Due Process Clause. (The Fourteenth Amendment Equal Protection Clause only applies to state and local government, not federal.) Here, the federal statute discriminates on the basis of age. Age is not a suspect class, nor is it like gender or illegitimacy, which are entitled to heightened scrutiny. As a result, the plaintiff would have to prove that the statute requiring him to retire at age 65, while other federal employees can work until age 75, is not rationally related to any legitimate government interest. In this regard, an invidious discrimination is one that is irrational. There is a chance he might succeed because federal judicial clerks are being forced to retire 10 years earlier than their civil servant counterparts for no apparent reason. This is the best choice because it offers some support for the plaintiff's claim while all other choices offer no support.
61
Doctors and scientists at a hospital develop a new prosthetic aortic valve that in initial tests on primates proves to be more effective than previously developed prosthetic heart valves. Further tests on human patients are promising as well. The developers of the device stand to make large fortunes when the prosthesis is approved by the Food and Drug Administration (FDA). The prosthetic heart valve has already found a ready market in Europe, which has less stringent testing guidelines for new medical devices. Several years after the first human tests of the heart valve device take place, and while the device is awaiting FDA approval, anecdotal evidence of early mechanical wear on the valves emerges. The FDA determines that the components of which it is made are subject not only to early wear but to sudden failure. Pursuant to its authority under a congressional act regarding tissue engineering and technology, the FDA prohibits all use of the prosthetic heart valve on humans, including experimental use. The developers of the device, who plan to market it throughout the United States and abroad, challenge the FDA's decision on constitutional grounds. Should the FDA's decision be upheld?
a. No, because the right to privacy of heart patients is infringed.
b. No, because the decision constitutes a "taking" of the developers' property.
c. Yes, because the federal government may regulate interstate commerce.
d. Yes, because the federal government may regulate for the general welfare.
c. Yes, because the federal government may regulate interstate commerce.
62
Concerned by the number of large commercial properties being purchased by foreign nationals, the legislature of State Red enacted a statute prohibiting the sale of commercial properties in excess of 10,000 square feet to aliens. A resident alien who has lived in the State Red for several years enters into a contract with an investor to buy a commercial printing business in the industrial zone of State Red's capital city. The square footage of the physical plant is 23,000. The resident and the investor decide to test the constitutionality of the State statute, and to that end they seek a declaratory judgment in federal court.
Which of the following statements regarding the declaratory judgment action is most accurate?
A The state has the burden of showing a compelling state interest in carrying out the statute's purposes regarding large commercial properties.
B The resident has the burden of showing that the state has no compelling interest in carrying out the statute's purposes regarding large commercial properties.
C The investor has the burden of showing that there is no rational basis for the statute's purposes regarding large commercial properties.
D The court will find that the resident, but not the investor, has standing.
The correct answer is: The state has the burden of showing a compelling state interest in carrying out the statute's purposes regarding large commercial properties.
Discussion of correct answer: When a state statute discriminates against a suspect class such as aliens, the burden is on the state to show that its actions are necessary to achieve a compelling state interest. In this case, the State Red statute may violate the Equal Protection Clause by prohibiting aliens from acquiring large commercial properties. The federal court hearing the resident and the investor's case will apply the strict scrutiny test to the statute to determine whether the law violates the constitutional guarantee of equal protection.
63
A city school system invested a great deal of funds and other resources into developing charter schools designed to provide education that was more targeted to the needs of the students. The charter schools provided advanced classes and spent more of their allotted money on attracting highly educated teachers and less on sports and disciplinary functions. Students had to pass a rigorous admission process to gain entry to the schools, and there were far more applicants than there were positions for students. A young, male student who was denied entry to the charter schools filed suit arguing that the diversion of city funds into the charter schools denied him equal protection under the laws based on his gender.
Which of the following facts, if true, would be most helpful to proving the student's case?
A Over 95% of the students who currently attend the charter schools are female.
B The administrators who created the charter school program did so with the stated intention of creating an environment where female students would have unfettered access to the best top resources available.
C The administrators who created the charter school program did so with the stated intention of lowering the ratio of males to females in the classroom from 6:4 to 3:7 in the hopes of increasing the school system's abysmal 45% graduation rate for females.
D Over 90% of the male students who have attended the charter schools have been dismissed for academic or behavioral issues.
The correct answer is: The administrators who created the charter school program did so with the stated intention of lowering the ratio of males to females in the classroom from 6:4 to 3:7 in the hopes of increasing the school system's abysmal 45% graduation rate for females.
Discussion of correct answer: In order to trigger intermediate scrutiny in an equal protection case, the plaintiff must show that there was a discriminatory motive to the challenged action. While the creation of the charter schools appears to be neutral with regard to gender, the statement that they were created in order to lower the ratio of males in the classroom indicates that there was a discriminatory intent behind their creation.
64
In an effort to improve the computer skills of all students in a certain state, the state enacted a statute that allowed public and private elementary and secondary schools to apply for funds granted to the state under Chapter 2 of the 1981 Education Consolidation and Improvement Act, which channeled federal funds to local education agencies to acquire, for use in public and private schools, instructional and educational materials, including library and media materials and computer software and hardware. The federal act mandated that the aid was intended to implement "secular, neutral, and nonideological" programs. Because the state statute permitted parochial schools to apply for the funding, a group of taxpayers sued to challenge the state statute on the ground that it violated the Establishment Clause of the First Amendment. Assuming proper standing, how should the court rule?
a. In favor of the taxpayers, because although the statute had a secular purpose, religion would be advanced by the statute and it would foster government entanglement with religion.
b. In favor of the taxpayers, because the statute was not narrowly tailored to further a compelling state interest.
c. In favor of the state, because the statute was narrowly tailored to further a compelling state interest, namely, to improve the computer skills of all students in the state.
d. In favor of the state, because the statute had a secular purpose, did not advance religion as its principal effect, and did not cause excessive government entanglement with religion.
d. In favor of the state, because the statute had a secular purpose, did not advance religion as its principal effect, and did not cause excessive government entanglement with religion.
65
A statute regulating the practice of midwives in a state was passed at midnight at the end of the regular legislative session. There were few legislators in attendance at the time of the vote, because most of the work of the legislature had been done and most members had gone home for the holidays, although a quorum existed. The sponsor of the legislation finally succeeded in persuading a core group to vote for the bill, which included a provision that the founder of the midwives’ lobbying group would no longer be licensed under the state’s laws. The group’s founder was a practicing midwife who had lobbied successfully against health maintenance organizations and on behalf of a number of state laws guaranteeing patients’ right to treatment in the area of pregnancy and childbirth. The bill’s sponsor saw the midwives’ successes as having driven up the cost of health care treatment throughout the state.
If the group challenges the revocation of the founder’s license in federal court, what is the most likely outcome?
(A) The state will prevail, because regulation of the group does not implicate interstate commerce.
(B) The state will prevail, because a license is a privilege that can be revoked without procedural due process.
(C) The lobbying group will prevail, because the revocation constitutes a bill of attainder.
(D) The lobbying group will prevail, because the revocation violates members’ right to work under the Privileges and Immunities Clause.
(C) The lobbying group will prevail, because the revocation constitutes a bill of attainder.
66
A state requires licenses of people "who are engaged in the trade of child care." It will grant such licenses only to those who are U.S. citizens.
Is the requirement constitutional?
A Yes, as an effort to ensure that child care providers speak English adequately.
B Yes, as an exercise of the state's police power.
C No, as a bill of attainder.
D No, as a denial of equal protection.
The correct answer is: No, as a denial of equal protection.
Discussion of correct answer: State or local laws that intentionally discriminate against aliens will generally be struck down as violating the Equal Protection Clause of the Fourteenth Amendment. Here, the state is intentionally discriminating against aliens. Such discrimination is generally subject to strict scrutiny--the state must show that the discrimination against aliens is necessary to achieve a compelling government interest and that no less burdensome means would accomplish that interest. Here, there are no facts to suggest any compelling government interest advanced by denying child care licenses to aliens who are otherwise qualified.
67
A staff assistant for a state agency was convicted in federal court of taking bribes from a foreign government for the purpose of influencing an upcoming vote on a waterworks bill. He was sentenced to probation. The staff assistant had served in the agency long enough to become fully qualified for his pension upon retirement under the terms of an agreement between the pensions board and the union. The staff assistant retired and immediately started receiving monthly pension checks. Subsequently, the governor signed into law an act which provided in part:
"Section 8. Any member of a state agency's staff who is convicted of bribery shall not be entitled to receive any retirement or other benefit or payment of any kind from the state. Such conviction shall be considered a breach of the staff member's employment contract."
The staff assistant received a letter from the state which stated that pursuant to this new act, the state was immediately discontinuing pension benefit payments to him on account of his bribery conviction. The staff assistant then contacted an attorney, who challenged the discontinuance of benefits on the grounds that the new law was unconstitutional.
To counter one of the attorney's possible arguments regarding the unconstitutionality of Section 8 of the act, which of the following arguments would serve as the state's best rebuttal?
A The staff assistant was afforded an opportunity to express his views about the new legislation at public hearings prior to the enactment of the statute.
B Deprivation of pension benefits is not cruel and unusual punishment.
C A letter sent through ordinary mail is sufficient notice to satisfy due process for the discontinuation of pension benefits.
D It is implicit that one of the conditions of the state's contract of employment with a state agency staff member is that he shall not engage in bribery.
The correct answer is: It is implicit that one of the conditions of the state's contract of employment with a state agency staff member is that he shall not engage in bribery.
Discussion of correct answer: This question requires a two-step analysis to select the best alternative. First, you must determine the constitutional issue involved. Second, you must apply the appropriate constitutional principle to the question asked--i.e., the state's best rebuttal to a constitutional challenge to the pension forfeiture statute. This answer choice is correct because the argument concerning a condition of employment contract with an agency staff member affects the Contract Clause of the Constitution. The staff member's attorney could validly challenge the constitutionality of the statute, alleging unconstitutional impairment of the obligation to contract. The pension forfeiture statute would be violative of the Contract Clause because under the circumstances, the staff member has satisfied the conditions of retirement eligibility (he became fully qualified for his pension on retirement, as stated in the facts). His retirement pay has ripened into a full contractual obligation and has become a vested right. Therefore, the pension forfeiture statute would be an unconstitutional impairment of his vested right to receive retirement benefits (his pension). A possible counterargument challenging the constitutionality of the statute is that there is a condition in the employment contract that a staff member will not engage in bribery, which would give the state grounds to claim that the forfeiture is a result of the breach of contract. While it may not be successful as an argument, it is the only one of the answer choices which is not irrelevant or inapplicable, and as such, this is the correct answer choice.
68
Over the past few years, an increasing portion of a state's alien population has applied for admission to a prominent public university. Unfortunately, this surge in applications placed a financial burden on the school's ability to maintain the discounted tuition rate it offered to all in-state students. At the urging of this prominent university's board of trustees, the state enacted legislation that allowed public universities to charge a non-discounted, out-of-state tuition rate to illegal aliens living within the state. When the prominent university refused to offer its in-state tuition rate to an undergraduate applicant on the basis of this new law, the applicant filed suit against the state's department of education, challenging the law as a violation of his Fourteenth Amendment rights.
Which of the following correctly states the applicable burden of proof?
A The department must show that the law is rationally related to a legitimate state interest.
B The department must show that the law is necessary to achieve a compelling state interest.
C The applicant must show that the law is not substantially related to an important state interest.
D The applicant must show that the law is not rationally related to a legitimate state interest.
The correct answer is: The applicant must show that the law is not rationally related to a legitimate state interest.
Discussion of correct answer: While alienage (i.e., legal aliens) is a suspect classification subject to the strict scrutiny standard of review, the Supreme Court has held that illegal aliens are not a suspect class. Instead, a state law that discriminates against illegal aliens is subject only to rational basis analysis. Here, the new legislation discriminates against illegal aliens--not legal aliens. Because this choice correctly applies the rational basis standard of review, it is the correct answer.
69
A 15-year-old child actor won a judicial action emancipating her from her parents who had been wasting the actor's considerable fortune. The 15-year-old moved to an apartment where she lived by herself and rode to work in cars sent by the production company for her television show. The actor became pregnant, and fearing that she was too young to handle the responsibility of a baby and the impact that the pregnancy might have on her career, the actor sought an abortion. The state where the actor lives requires a minor seeking an abortion to obtain the consent of one parent, or, in the alternative, a judge, before undergoing the procedure. Despite the fact that the actor does not have parental or judicial consent, a clinic doctor performs the abortion. Now subject to severe sanctions under the law, the doctor challenges the law's constitutionality. Assuming proper standing, which of the following is the doctor's strongest constitutional argument against the state statute?
A. It is an invalid exercise of the state's police power.
B. It legislates morality in violation of the Establishment Clause.
C. It unduly burdens a woman's right to an abortion.
D. It violates a woman's right to privacy.
C. It unduly burdens a woman's right to an abortion.
70
A state enacted a statute which required that 60% of the employees of any business that was located in the state and that employed more than 10 people be residents of the state. A woman worked at a telemarketing firm close to the border in the state and commuted from the neighboring state. The telemarketing firm had 20 employees, 15 of whom lived outside of the state and either commuted into the office or worked remotely. The woman was informed by her manager that she would be one of the seven nonresident employees whose employment was being terminated pursuant to the new state statute. The woman properly filed an action challenging the state statute on constitutional grounds.
Is the state statute constitutional?
A No, because it authorizes employers to arbitrarily dismiss some nonresidents while retaining others.
B No, because it unfairly discriminates in favor of residents of the state as to the basic right to employment.
C Yes, because a state is permitted to treat nonresidents differently from residents whenever it sees fit.
D Yes, because the woman was discharged in compliance with the ordinance and was not otherwise discriminated against by her employer.
The correct answer is: No, because it unfairly discriminates in favor of residents of the state as to the basic right to employment.
Discussion of correct answer: The state is discriminating against nonresidents with respect to one of the privileges and immunities of citizenship protected by Article IV, Section 2--the right to pursue a livelihood. This clause protects nonresidents from being discriminated against by state or local governments with respect to certain basic rights or essential activities of citizenship. Among these are the right to own property, equal access to medical care and the courts, and the right to earn a living. Here, the state statute discriminates against nonresidents. When discrimination against the employment rights of nonresidents is found to exist, the law will be struck down unless the responsible state or local government can show such discrimination is proper because the nonresidents are a peculiar source of the evil the law was designed to redress. For instance, if the state were experiencing high unemployment because nonresidents were taking all the jobs, a court could find that the ordinance was constitutional. However, no such showing has been made here.
71
State X is 75% covered in diamond mines. Its capital city is known for its luxurious hotels and resorts. Many of the capital city’s tourists come to see the extravagant, diamond-encrusted details used in the hotels and resorts. To ensure the sale of State X's only raw resource--diamonds--the legislature passes a law that provides that only diamonds mined in State X can be used in its hotels and resorts. The price of the diamonds sold in State X is the same for both in-state and out-of-state companies. An interior design company specializing in diamond detailing, from neighboring State Y, sues in federal court for the right to sell diamond-encrusted hotel doorframes that were mined in State Y to State X's capital city's hotels. Diamonds mined in State Y are cheaper for purchase in State Y than those imported from State X. How is the court likely to rule?
A. State X will prevail, because all companies pay the same price for the diamonds and any extra cost incurred by the interior design company is trivial.
B. State X will prevail, because the statute does not violate the Privileges and Immunities Clause of Article IV.
C. The interior design company will prevail, because the statute violates the Commerce Clause.
D. The interior design company will prevail, because the statute violates the Equal Protection Clause of the Fourteenth Amendment.
C. The interior design company will prevail, because the statute violates the Commerce Clause.
72
A city fire department required its firefighters to pass a comprehensive written exam in order to be eligible for promotion to the rank of lieutenant. Over the past several years, all of the department's African-American firefighters who sat for the exam failed to pass. Due to large public outcry, the city passed an ordinance instituting a racial quota system to govern promotions within the fire department. This rule required two of every five firefighters promoted to lieutenant to be African-American. Thereafter, a group of the department's Caucasian firefighters filed suit in federal court against the city, challenging the constitutionality of the new measure.
How should the court rule?
A For the firefighters, if they can show the rule is discriminatory in application.
B For the firefighters, if they can show the rule has a discriminatory purpose.
C For the city, if it can show there is no less restrictive alternative means available.
D For the city, if it can show the rule is substantially related to a compelling interest.
The correct answer is: For the city, if it can show there is no less restrictive alternative means available.
Discussion of correct answer: Affirmative action measures based on race must pass strict scrutiny. Under the strict scrutiny standard, the burden of persuasion is on the government to prove that the measure being challenged is necessary to further a compelling interest. This means that the government must prove that no less restrictive alternative means is available. Since this choice accurately applies the strict scrutiny standard, it is the correct answer.
73
A man recently moved to a new town and fell in love with its charm. A month later, deciding to get as involved as possible, the man submitted his name for an upcoming election for city council. However, the city refused to put his name on the ballot, citing a statute requiring residents to have lived within the town boundaries for at least 60 days prior to being considered for candidacy. The man sued the city, claiming that the statute violated the Due Process Clause.
How should the court rule?
A In favor of the city, because under a rational basis analysis, the statute is rationally related to a legitimate state interest.
B In favor of the city, because under a strict scrutiny analysis, the statute is necessary to further a compelling state interest.
C In favor of the man, because under a rational basis analysis, the 60-day residency requirement is unconstitutional.
D In favor of the man, because under a strict scrutiny analysis, the 60-day residency requirement is unconstitutional.
The correct answer is: In favor of the city, because under a rational basis analysis, the statute is rationally related to a legitimate state interest.
Discussion of correct answer: While the right to vote is typically considered a fundamental right subject to strict scrutiny, government regulations of ballot access by candidates based on age, duration of residency, or payment of filing fees require only a minimum rational basis scrutiny. Because the statute in question here is setting a durational residency requirement on a person's being able to get their name on the ballot as a candidate, it will be subject to rational basis, not strict scrutiny.
74
The owner of an adult bookstore would like to place an advertisement in the local newspaper. However, the editors of the paper have decided that they are no longer going to print advertisements for businesses that the editors judge to be "unsuitable for a respectable family newspaper." If the bookstore owner sues the newspaper for refusing to run his ad, will the court compel the paper to print his ad?
a. No, because the advertisement is commercial speech.
b. No, because there is no First Amendment right to compel the newspaper to accept the ad.
c. Yes, so long as the ad is not obscene, false, or misleading.
d. Yes, because of the fairness doctrine.
b. No, because there is no First Amendment right to compel the newspaper to accept the ad.
75
A man was a legal, permanent resident of the United States who lived in State A. He accidentally hit his neighbor with his car while his neighbor was crossing the street and the neighbor sustained injuries as a result. The neighbor sued the man to recover for his injuries in State A's state court. The man made a demand for a jury trial, but State A had passed a law six months prior to the time the neighbor brought suit that no longer provided for the right to a jury trial in civil cases. Therefore, the man's request for a jury was denied. In the bench trial that then followed, the state court judge ruled against the man and found him liable to his neighbor for damages. The man filed an action in federal district court against State A seeking money damages on the ground that by denying him the right to a trial by jury, his due process rights under the Fourteenth Amendment were violated. State A raised a variety of defenses to the man's claim and ultimately succeeded in having the man's case dismissed.
The court likely relied on all but which one of the following grounds in dismissing the man's case?
A The Eleventh Amendment bars suits by a citizen or resident of a state against that State.
B The right to a jury trial in a civil case is not a right that has been incorporated into the Fourteenth Amendment to apply to the states.
C The man is not a citizen of the United States, and therefore the protections afforded by the Due Process Clause of the Fourteenth Amendment do not apply to him.
D The state's law does not violate the constitutional prohibition against ex post facto laws.
The correct answer is: The man is not a citizen of the United States, and therefore the protections afforded by the Due Process Clause of the Fourteenth Amendment do not apply to him.
Discussion of correct answer: The protections afforded under the Fourteenth Amendment's Due Process Clause apply to all persons, including aliens, not just to citizens of the United States. Therefore, the fact that the man was not a citizen of the United States is not relevant and this is not a ground on which the district court would have relied in dismissing his case
76
The state of Maryland passed a law that offered bounties to scrap processors to destroy abandoned automobile hulks owned by the state. The law restricted the payment of these bounties to Maryland citizens or businesses only. An out-of-state junk dealer filed suit in federal court arguing that the law is unconstitutional because it discriminates against out-of-state actors. Will the junk dealer’s suit be successful?
A. No, because state regulation of junk does not affect interstate commerce.
B. No, because the state is acting as a market participant.
C. Yes, because the law discriminates against out-of-state businesses on its face.
D. Yes, because the state law furthers no ostensible benefit.
????
77
Congress passes an act requiring that all owners of wristwatches in the United States register them with a federal wristwatch registry. The purpose of the law is to provide reliable evidence of ownership to reduce wristwatch theft. No fee is charged for the registration. Although most stolen wristwatches are kept or resold by the thieves in the same cities in which the wristwatches were stolen, an increasing number of wristwatches are being taken to cities in other states for resale. Is this act of Congress constitutional?
A. Yes, because Congress has the power to regulate property for the general welfare.
B. Yes, because Congress could determine that, in inseverable aggregates, wristwatch thefts affect interstate commerce.
C. No, because most stolen wristwatches remain within the state in which they were stolen.
D. No, because the registration of personal property is a matter reserved to the states by the Tenth Amendment.
B. Yes, because Congress could determine that, in inseverable aggregates, wristwatch thefts affect interstate commerce.
78
In order to combat a rise in organized crime within the state, an anti-organized crime task force was created. After reviewing the previous attempts by various state and local agencies to infiltrate the criminal organizations, the state also adopted a policy that prohibited the assignment of female agents to the undercover infiltration division of the task force. Over the course of 10 separate attempts, seven agents were killed attempting to go undercover, including all five women that were sent in, none of whom managed to make even an initial penetration into the crime families. While undercover assignments were a very successful way to advance to a higher position, it was because of the state's concern with the safety and well-being of its female officers and agents and the demonstrated misogyny of the crime families under investigation that it adopted such a policy. One female agent, desiring to be a member of the undercover division in order to help her achieve her next promotion, submitted an application for the undercover division. After her application was rejected, the agent sued the state in federal court to enjoin enforcement of its stated policy on the grounds that it was unconstitutional.
As a matter of constitutional law, which of the following results in this suit is most appropriate?
A Judgment for the agent, because the particular classification contained in this policy is not necessary to further a compelling interest.
B Judgment for the agent, because the terms and conditions of state government employment are privileges or immunities of state citizenship that may not be abridged by the state on the basis of gender.
C Judgment for the state, because the policy is substantially related to the advancement of an important state interest.
D Judgment for the state, because the state has articulated a rational basis for this classification and, therefore, a court may not substitute its judgment for that of responsible state officials.
The correct answer is: Judgment for the state, because the policy is substantially related to the advancement of an important state interest.
Discussion of correct answer: Gender classifications are subject to intermediate scrutiny, which puts the burden of persuasion on the government to demonstrate that the classification (or discrimination) is substantially related to an important government interest. Here, there is a record showing that such an assignment carries a very high risk of death for female agents, due in large part to the nature of the groups being infiltrated. As such, this classification will likely be found to substantially relate to an important state interest.
79
A state legislature passed an intestacy law that excluded illegitimate children from inheriting from their intestate fathers unless paternity was proved during the lifetime of the father. During debate on the law, the bill’s principal sponsor stated that the main reason for the bill was to promote the state’s interest in an orderly disposition of the property of intestates after death. The governor signed the bill into law. The father of an illegitimate child died. A probate court found that because paternity had not been determined within the life of the father, the illegitimate child could not inherit property from her father. The illegitimate child filed suit, challenging the intestacy law. How should the court rule?
(A) In favor of the illegitimate child, because the law was not rationally related to any legitimate interest.
(B) In favor of the illegitimate child, because proof of paternity during the lifetime of the father was not the least restrictive means available to further the compelling state interest in the orderly disposition of the property of intestates.
(C) Against the illegitimate child, because the intestacy statute was substantially related to the state’s important interest in the orderly disposition of the property of intestates.
(D) Against the illegitimate child, because proof of paternity was necessary to further the compelling state interest in the orderly disposition of the property of intestates.
(C) Against the illegitimate child, because the intestacy statute was substantially related to the state’s important interest in the orderly disposition of the property of intestates.
80
Market research reports reflected a significant expansion in the state's skin care industry over the past ten years. In an effort to boost this economic growth, one city enacted a provision establishing a special esthetics school within its community college. When a male undergraduate student sought to enroll in the esthetics school, the college denied his application. The board of admissions based its decision on the new program's municipal charter, which provided that the esthetics school's purpose is to support women's achievements in professional skin care. The student filed suit against the city, claiming a violation of his Fourteenth Amendment rights.
Which of the following is a proper basis for the court to rule for the student?
A The city failed to prove a lack of purposeful discrimination.
B The city failed to show an exceedingly persuasive justification.
C The student proved a lack of substantial relationship to state interest.
D The student proved the charter is discriminatory as applied.
The correct answer is: The city failed to show an exceedingly persuasive justification.
Discussion of correct answer: Classifications based on gender are quasi-suspect, subject to intermediate scrutiny. This standard of review places the burden of persuasion on the government to prove that the measure being challenged is substantially related to the achievement of an important government interest. "Substantially related" means that an exceedingly persuasive justification must be shown. Since this answer accurately states the intermediate scrutiny standard, it is the best choice.
81
The U.S. Congress passed a law to give grants financing building renovations of colleges and universities. The grants are available to any college or university, including private schools operated by religious organizations. The statute provides that no part of a grant is to be used for buildings in which a school offers religious instruction. A federal taxpayer challenges the construction grants to church-operated private colleges and universities. Should the construction grants be found constitutional?
a. Yes, because aid to one aspect of an institution of higher education not shown to be pervasively sectarian does not necessarily free it to spend its other resources for religious purposes.
b. Yes, because bricks and mortar do not aid religion in a way forbidden by the Establishment Clause of the First Amendment.
c. No, because any financial aid to a church-operated school strengthens the religious purposes of the institution.
d. No, because the grants involve or cause an excessive entanglement with religion.
d. No, because the grants involve or cause an excessive entanglement with religion.
82
A city police department needs to hire an undercover agent to infiltrate a racist militant group whose members are all white. An African American officer applied for the assignment but was rejected even though he had extensive undercover experience. A much less experienced white officer was chosen for the position.
The department admitted that race was the determinative criteria in filling the position. If the officer who did not receive the position sued, what would be the most likely result?
A The department's decision will be upheld as necessary to achieve a compelling interest.
B The department's decision will be upheld as rationally related to a legitimate state interest.
C The department's decision will be overturned because race cannot be used as a criterion in government job assignments.
D The department's decision will be overturned as a violation of the Equal Protection Clause of the Fourteenth Amendment.
The correct answer is: The department's decision will be upheld as necessary to achieve a compelling interest.
Discussion of correct answer: The primary criterion for the government job assignment in this case is race. Under the Equal Protection Clause, that classification is only valid when necessary to achieve a compelling interest. This is one of the rare cases in which this standard is met. An African American police officer would be totally ineffective penetrating an organization in which race is the primary criterion for membership. And therefore the racial classification in this case will be upheld.
83
Until 1954, a state required segregation in all public and private schools, but all public schools are now desegregated. Other state laws, enacted before 1954 and continuing to the present, provide for the free distribution of textbooks to students in all public and private schools. In addition, the state accredits schools and certifies teachers. One private school that offers elementary and secondary education in the state denies admission to all non-Caucasians.
Which of the following is the strongest argument against the constitutionality of the free distribution of textbooks to the students at the private school?
A No legitimate educational function is served by the free distribution of textbooks.
B The state may not aid private schools.
C The Constitution forbids private, as well as public, bias in education.
D Segregation is furthered by the distribution of textbooks to these students.
The correct answer is: Segregation is furthered by the distribution of textbooks to these students.
Discussion of correct answer: The Supreme Court has held that a state program in which the state bought textbooks and lent them to students in both public schools and private schools, including private schools that practiced racial discrimination, was unconstitutional [Norwood v. Harrison, 413 U.S. 455 (1973)]. The majority opinion stated that a state cannot give significant aid to schools that practice racial or other invidious discrimination.
84
A state study showed that the percentage of state residents owning real property had decreased over the past decade, and that the percentage of non-U.S. citizens owning real property had increased dramatically, particularly in rural areas. The study further indicated that if non-U.S. citizens continued to invest in real estate at the current rate, they would own 20% of all land in the state by the end of the next decade. In an effort to control the amount of real property held by non-U.S. citizens, the state enacted a law prohibiting noncitizens from buying more than 10 acres of residential or commercial property. People violating the law were to be divested of their property in actions brought by the state attorney general.
A farmer who was not a U.S. citizen had lived in the state for several years. She contracted to buy a 40-acre farm in a rural county. At the time of the purchase, the farmer was aware of the state law. Immediately after taking possession of the property, she filed suit in federal court challenging the application of the law to her realty transaction.
If the state attorney general files a motion to dismiss the non-U.S. citizen's suit, how is the federal court likely to rule on the motion?
A The court will grant the motion to dismiss the lawsuit, because the state has sovereignty to determine to whom land may be transferred within state borders.
B The court will grant the motion to dismiss the lawsuit, because a non-U.S. citizen cannot seek redress in the federal courts.
C The court will deny the motion to dismiss the lawsuit, because the farmer's suit presents a federal question.
D The court will deny the motion to dismiss the lawsuit, because given Congress's plenary power over non-U.S. citizens, the states may never intervene in matters involving aliens.
The correct answer is: The court will deny the motion to dismiss the lawsuit, because the farmer's suit presents a federal question.
Discussion of correct answer: Strict scrutiny applies to classifications based on race, alienage, and national origin. As such, state laws making such classifications are presumptively invalid, absent a showing by the state that the measure is necessary to achieve a compelling state interest. The only instance in which a state may permissibly discriminate against aliens is in activities where participation in the functioning of government is involved. In this case, the state statute discriminates against aliens by preventing them from acquiring real property in the state. The constitutional issue raised by the farmer's suit is a federal question over which the federal courts clearly have jurisdiction. Therefore, the court will deny the motion to dismiss the action, and, most likely, will ultimately rule in favor of the farmer and declare the statute invalid. Note that in the case Oyama v. California [332 U.S. 633 (1948)], a state law prohibiting aliens from owning land was invalidated. As such, this answer choice is correct.
85
A state agency needed to select an officer to go undercover and infiltrate a white supremacist group whose members occupied a fortified compound within the state. A Hispanic officer with extensive undercover experience applied for the assignment but was rejected in favor of a much less experienced white officer. The agency admitted that race was the determinative criteria in filling the position.
If the Hispanic officer sued, should the court uphold the department's decision?
A No, because it was a violation of the Equal Protection Clause of the Fourteenth Amendment.
B No, because race cannot be used as a criterion in government job assignments.
C Yes, because it was necessary to achieve a compelling interest.
D Yes, because it was rationally related to a legitimate state interest.
The correct answer is: Yes, because it was necessary to achieve a compelling interest.
Discussion of correct answer: The primary criterion for the government job assignment in this case is race. Under the Equal Protection Clause, that classification is only valid when necessary to achieve a compelling interest. This is one of the rare cases in which this standard is met. A Hispanic undercover agent would be totally ineffective penetrating an organization in which race is the primary criterion for membership. Therefore, the racial classification in this case will be upheld.
86
A state enacted a statute that required that 50% of the employees of any business that was located in the state and that employed more than five people be residents of the state. A man worked for a department store in the state as a shoe salesman and commuted the five miles to his job from a neighboring state. The department store had 10 employees, eight of whom lived outside of the state. The man was informed by his supervisor that he was one of the three nonresident employees who would be fired pursuant to the new statute. The man properly filed an action challenging the statute on constitutional grounds.
Is the state statute constitutional?
A No, because it unfairly discriminates in favor of residents of the state against nonresidents.
B No, because it authorizes employers to arbitrarily dismiss some nonresidents while retaining others.
C Yes, because a state is permitted to treat nonresidents differently from residents whenever it sees fit.
D Yes, because the man was discharged in compliance with the statute and was not otherwise discriminated against by his employer.
The correct answer is: No, because it unfairly discriminates in favor of residents of the state against nonresidents.
Discussion of correct answer: Here, the state is discriminating against nonresidents with respect to one of the privileges and immunities of citizenship protected by Article IV, Section 2. This clause protects out-of-state residents from being discriminated against by state or local governments with respect to certain basic rights and certain essential activities. Seeking occupational opportunities is one such essential activity that is engaged in by citizens. When a state's discrimination against out-of-state citizens limits their occupational opportunities, heightened scrutiny applies and the discrimination will not survive constitutional scrutiny unless the state can show that the discriminatory scheme is substantially related to an important state interest. For example, if the state could show that nonresidents were depleting a valuable state resource or, on the facts of this case, responsible for the high unemployment rate of state citizens, then a court could find discrimination against out-of-state citizens to be constitutional. However, no such showing has been made here.
87
After a series of shoplifting incidents, the police chief in a small Western town strongly suspected that a town resident who had been convicted of larceny on multiple occasions. The police chief sought to question the resident, but the resident was nowhere to be found, and seemed to have fled the area or to be avoiding police contact. The resident's unavailability served to enforce the police chief's belief that the resident was the guilty party in the recent shoplifting incidents. The police chief circulated a flier designed to help local retailers identify local shoplifters. The flier displayed the resident's photograph, listed his prior shoplifting convictions, and described him as a suspect in additional incidents. Several weeks later, the resident returned to the town from a three-week vacation. The shoplifting charges against the resident were subsequently dismissed. When he learned of the fliers that had been circulated to local merchants, the resident filed suit against the local police under a federal civil rights law, asserting that the distribution of the flier had stigmatized him, violating his constitutional right to privacy and the Due Process Clause.
Is the resident likely to prevail in his action?
A No, because the resident was not deprived of a liberty interest protected under the Fourteenth Amendment Due Process Clause.
B No, because harm arising from injury to reputation cannot be the basis of a claim of deprivation of a liberty interest.
C Yes, because by posting the defamatory flier, the police invaded the resident's constitutional right to privacy.
D Yes, because by posting the defamatory flier, the police deprived the resident of a liberty interest in the form of his reputation.
The correct answer is: No, because the resident was not deprived of a liberty interest protected under the Fourteenth Amendment Due Process Clause.
Discussion of correct answer: The Supreme Court has held that, in the absence of related harm to a more tangible interest such as an employment opportunity, injury to reputation does not constitute deprivation of a liberty interest protected under the Fourteenth Amendment Due Process Clause. Thus, the alleged injury to the resident's reputation by the police is not enough for the resident to prevail on a Fourteenth Amendment due process claim.
88
A particular state has made unemployment benefits available to any state resident who was laid off by his or her company for two years from the date of termination. In order to deal with severe fiscal problems in the state budget, the state has cut back on a number of existing state programs. Most controversially, the state has decided to reduce all payments to recipients of unemployment benefits by 25% and to terminate benefits after one year, effective immediately. The justification for the change in policy is that the state cannot afford to pay any more without severely compromising its ability to perform other important state functions. A coalition of unemployment recipients has challenged the provision under the Fourteenth Amendment.
Is this statute constitutional?
A Yes, because unemployment benefits are a privilege and can be revoked by the state without offending due process.
B Yes, because the state has satisfied the demands of due process.
C No, because by failing to provide a hearing before reducing unemployment benefits, the state has deprived the recipients of property without sufficient procedural due process.
D No, because the statute violates the Equal Protection Clause by classifying on the basis of the suspect classification of poverty.
The correct answer is: No, because by failing to provide a hearing before reducing unemployment benefits, the state has deprived the recipients of property without sufficient procedural due process.
Discussion of correct answer: The Supreme Court has held that welfare benefits are a property interest protected by the Fourteenth Amendment, and that when individuals are deprived of their benefits, the Constitution requires a minimum level of procedural protection, usually notice and a hearing [Goldberg v. Kelly, 397 U.S. 254 (1970)]. Here, because there is no provision for a hearing of any sort, the state has violated its obligation to provide procedural due process.
89
A woman who was missing one of her legs applied to be a city firefighter, but was rejected. The woman then contacted the station chief, who admitted that the woman was denied admission solely due to the fact that she was missing one leg. The woman then filed an appropriate action against the city asserting that her equal protection rights had been violated.
Which of the following correctly states the applicable burden of persuasion?
A The city has the burden to show that the woman's rejection furthers an important state interest.
B The city has the burden to show that the woman's rejection is rationally related to a legitimate state interest.
C The woman bears the burden to show the city's actions are not rationally related to a legitimate state interest.
D The woman bears the burden to show the city's actions do not further a compelling state interest.
The correct answer is: The woman bears the burden to show the city's actions are not rationally related to a legitimate state interest.
Discussion of correct answer: Discrimination based on a physical disability, such as a missing leg, implicates neither a fundamental right nor a suspect class. As such, rational basis scrutiny would be applied. The burden of persuasion would be on the plaintiff, the woman, to show that the city's actions are not rationally related to a legitimate state interest. Notwithstanding certain protections created by state governments and Congress (notably, the ADA) to prevent discrimination against persons with disabilities, the fact that the woman was rejected based on his physical disability per se does not warrant the use of heightened equal protection scrutiny.
90
After many years of flouting the law while running the largest crime family on the eastern seaboard, “Johnny D.” is finally indicted on racketeering and murder charges and brought to trial. One of his closest colleagues rounds up supporters and has them stand in front of the courthouse during closing arguments and jury deliberations yelling: “Death to Jurors Who Convict.” A state statute provides for criminal prosecution of any person who “engages in expressive conduct sufficiently noisy that it can disrupt the proceedings of the court, during courtroom hours on, or adjacent to, courthouse grounds.” In the prosecution of a supporter of “Johnny D.” for carrying a sign in front of the courthouse, what is the most likely outcome?
a. The supporter will prevail, because he did not intend to kill any jurors who voted to convict “Johnny D.”
b. The supporter will prevail, because the statute unconstitutionally prohibits protected as well as unprotected speech.
c. The state will prevail, because the statute prohibits subversive speech that creates a “clear and present danger” of influencing jurors in the “Johnny D.” case.
d. The state will prevail, because the statute does not violate rights guaranteed by the First Amendment.
d. The state will prevail, because the statute does not violate rights guaranteed by the First Amendment.
91
A woman was employed as a state trooper. Although the state provides both sexes with equal pay and benefits, the state has adopted a policy that prohibits the assignment of female officers to its special undercover narcotics division. This is a moderate risk position that sometimes involves violent encounters with drug dealers. Since the special narcotics division was first established, five undercover agents have been killed in the line of duty. It is because of the state's concern with the safety and well-being of its female officers that it has adopted such a policy. The woman, who desired to be a member of the narcotics division, filed an application for assignment as a special drug agent. After she was rejected for the position, the woman sued the state in federal court to enjoin enforcement of its stated policy on the grounds that it is unconstitutional.
As a matter of constitutional law, which of the following results in this suit is most appropriate?
A Judgment for the woman, because the facts asserted do not demonstrate that the particular classification contained in this policy is substantially related to the advancement of an important state interest.
B Judgment for the woman, because the terms and conditions of state government employment are privileges or immunities of state citizenship that may not be abridged by the state on the basis of gender.
C Judgment for the state, because it is within a state's police power to insulate the terms and conditions of governmental employment.
D Judgment for the state, because the state has articulated a rational basis for this classification and, therefore, a court may not substitute its judgment for that of responsible state officials.
The correct answer is: Judgment for the woman, because the facts asserted do not demonstrate that the particular classification contained in this policy is substantially related to the advancement of an important state interest.
Discussion of correct answer: Gender classifications are subject to a middle-tier standard of review. The burden of persuasion is on the government to demonstrate that the classification (or discrimination) is substantially related to an important governmental interest. This answer choice correctly states the applicable standard of review for gender classifications.
92
The legislature of a state holds hearings on the issues of state voter registration and participation, and determines that the numbers for both registration and participation are lagging behind regional and national statistics. In an effort to encourage more citizens to participate in the political process, the legislature enacts sweeping changes in the state’s voting laws. This includes streamlining the registration process (citizens may register to vote when they renew their driver’s license) and educating the public about voting rights (through mailings from the secretary of state’s office). The state’s election statute does not conflict with any valid federal law.
If one of the provisions of the state’s election statute requires all citizens exercising the right to vote to be literate in English, what is the strongest constitutional basis for finding the provision invalid?
(A) The Enabling Clause of the Fourteenth Amendment.
(B) Fourteenth Amendment Equal Protection Clause.
(C) Fourteenth Amendment procedural due process.
(D) The doctrine of preemption.
(B) Fourteenth Amendment Equal Protection Clause.
93
Congress enacted a statute that made it illegal for "any employee, without the consent of his or her employer, to post on the Internet any information concerning the employer." The purpose of the statute was to prevent employees from revealing their employers' trade secrets. Is the statute constitutional?
A. No, because it is not narrowly tailored to further a compelling government interest.
B. No, because it targets a particular medium of communication for special regulation.
C. Yes, because it leaves open ample alternative channels of communication.
D. Yes, because it prevents employees from engaging in unethical conduct.
A. No, because it is not narrowly tailored to further a compelling government interest.
94
A state passed legislation requiring that all health insurance plans sold in the state offer the option for insured parents to keep their children on their family insurance plans until the children are 29 years old if it can be shown that the children makes less than $25,000 a year. In order to get the legislation passed, the sponsors of the bill bowed to outside pressure groups by inserting language in the bill limiting this option to be used only to provide coverage to legitimate children of parents, on the grounds that doing so would honor the sanctity of marriage. A man who is a 29-year-old resident of the state, and who was born out of wedlock, brought suit to have the law ruled unconstitutional on the grounds that it violates the Equal Protection Clause.
Which of the following best states the burden of persuasion?
A The state must show that the classification is rationally related to a state interest.
B The state must show that the classification is substantially related to a state interest.
C The man must show that the classification is not rationally related to a state interest.
D The man must show that the classification is not substantially related to a state interest.
The correct answer is: The state must show that the classification is substantially related to a state interest.
Discussion of correct answer: Distinctions drawn between legitimate and illegitimate children are subject to an intermediate, "quasi-suspect standard." When such laws are challenged, the burden is on the state to show that the classification is substantially related to a state interest.
95
A state experienced an ongoing problem of non-repayment of school loans. Because many of the loans had been issued by the state department of education, the state treasury was incurring a substantial loss of revenue from the delinquent loans. The situation was becoming more severe due to the current recession. As a result of a nationwide economic downturn, many recent graduates were unable to find employment. Consequently, they did not have available funds to repay their student loans.
In light of this situation, the state legislature enacted a bill which provided that none of the state agencies could issue a license of any kind to a person who was delinquent in repayment of his or her student loan(s). The law covered, but was not limited to, professional licenses (such as law, medical, and certified public accountant), driver's licenses, and marriage licenses.
A college graduate who was delinquent on the repayment of his student loan wanted to marry his college sweetheart, but could not obtain a marriage license under the new statute. The college graduate filed an action in state court challenging the constitutionality of the state statute.
Is the state statute constitutional?
A Yes, because a license is a privilege, not a right.
B Yes, because the law is rationally related to a legitimate government interest.
C No, because the law has a substantial impact on a fundamental right.
D No, because there is no rational relationship between the denial of a marriage license and the delinquency of a student loan.
The correct answer is: No, because the law has a substantial impact on a fundamental right.
Discussion of correct answer: The U.S. Supreme Court has recognized the right to marry as a fundamental right protected under the liberty interest of the Due Process Clause. In the case of Zablocki v. Redhail [434 U.S. 374 (1978)], a Wisconsin law prevented an individual from obtaining a marriage license without court approval if the person had a minor child not in his or her custody for whom there was a court order to pay support. Judicial permission to marry could be granted only upon proof that all child support payments were current. In striking down the law 8-1, the Court stated it is "not surprising that the decision to marry has been placed on the same level of importance as decisions relating to procreation, childbirth, child rearing, and family relationships. It would make little sense to recognize a right of privacy with respect to other matters of family life and not with respect to the decision to enter the relationship that is the foundation of the family in our society." Although the state had an interest in assuring that child support was paid for minor children, the Wisconsin statute was found not to be sufficiently related to that end and, thus, a violation of equal protection. Furthermore, less restrictive alternative means to ensure the payment of child support were available, such as wage garnishment, civil contempt, or criminal prosecution. The majority opinion concluded that the right to marry was sufficiently fundamental that a "direct and substantial" interference with it should be subjected to strict scrutiny. The state statute in our question denies a marriage license to any individual who is delinquent in the repayment of student loans. Applying the same fundamental right analysis as the Zablocki court, using the strict scrutiny standard of review, the statute should be held unconstitutional.
96
A town with a large proportion of residents who are not U.S. citizens passes an ordinance requiring that all town police officers be U.S. citizens. The law is challenged by a group of resident non-citizens who desire to become town police officers.
Is the citizenship requirement constitutional?
A Yes, because states can restrict significant government functions to U.S. citizens.
B Yes, because states can discriminate against non-U.S. citizens if they have a rational basis for doing so.
C No, because serving as a police officer is not a significant government function.
D No, because the law constitutes a bill of attainder.
The correct answer is: Yes, because states can restrict significant government functions to U.S. citizens.
Discussion of correct answer: In general, state laws that discriminate against aliens are subject to strict scrutiny. However, there is an important exception which provides that states may discriminate against aliens where significant participation in the functioning of government is involved. One such category of a "significant government function" is serving as a police officer [Foley v. Connelie, 435 U.S. 291 (1978)].
97
A woman was employed as a state trooper. Although the state provides both sexes with equal pay and benefits, the state has adopted a policy that prohibits the assignment of female officers to its special undercover narcotics division. This is a moderate risk position that sometimes involves violent encounters with drug dealers. Since the special narcotics division was first established, five undercover agents have been killed in the line of duty. It is because of the state’s concern with the safety and well-being of its female officers that it has adopted such a policy. The woman, who desired to be a member of the narcotics division, filed an application for assignment as a special drug agent. After she was rejected for the position, the woman sued the state in federal court to enjoin enforcement of its stated policy on the grounds that it is unconstitutional.
As a matter of constitutional law, which of the following results in this suit is most appropriate?
(A) Judgment for the woman, because the facts asserted do not demonstrate that the particular classification contained in this policy is substantially related to the advancement of an important state interest.
(B) Judgment for the woman, because the terms and conditions of state government employment are privileges or immunities of state citizenship that may not be abridged by the state on the basis of gender.
(C) Judgment for the state, because it is within a state’s police power to insulate the terms and conditions of governmental employment.
(D) Judgment for the state, because the state has articulated a rational basis for this classification and, therefore, a court may not substitute its judgment for that of responsible state officials.
(A) Judgment for the woman, because the facts asserted do not demonstrate that the particular classification contained in this policy is substantially related to the advancement of an important state interest.
98
A resident alien was recently certified to be a teacher by a state regulatory agency. She applied to several schools that were hiring in her district, but all of them refused to hire her, citing a state law prohibiting non-citizens from teaching in a public school. The woman contacted the schools and was told that, if not for the state law, they would have hired her. The woman sued the state to challenge the constitutionality of the law prohibiting non-citizens from public school teaching.
What is the most likely outcome?
A The statute is constitutional, because public school education involves the functioning of government.
B The statute is constitutional, because the exclusion is rationally related to legitimate state purposes.
C The statute is unconstitutional, because the action of the state violates the Privileges and Immunities Clause of Article IV of the Constitution.
D The statute is unconstitutional, because there is not sufficient justification to discriminate against aliens as a class.
The correct answer is: The statute is constitutional, because public school education involves the functioning of government.
Discussion of correct answer: The state may discriminate against aliens only in specific matters relating to the governmental process, such as the denial of a right to run for elective office or to hold a position as a police officer or probation officer or a public school teacher. In all other cases, a state's attempt to discriminate against persons based on alienage will be subject to the strict scrutiny test, because alienage is a suspect classification.
99
A man entered into a franchise contract with a company to operate a fast-food restaurant in a city. The company's national headquarters is located in another state. After the contract was executed, the man leased a store in a shopping mall where he planned to open his restaurant. City public officials, however, refused to grant the man the necessary food vendor's license despite the fact that he could prove his restaurant complied with all provisions of the municipal licensing ordinance. The city ordinance provided, in part, that "a food vendor's license shall be issued to any applicant who properly complies with all of the health requirements of this ordinance." After the man's application for a food vendor's license was rejected, he requested a hearing to establish his qualifications. City officials refused this request and also declined to give any reason for his license denial.
Which of the following is the strongest constitutional argument that the man may use to challenge the refusal of city officials to grant him a food vendor's license?
A The city action denied him procedural due process.
B The city action denied him substantive due process by arbitrarily regulating economic activity.
C The city action constituted an undue burden on the potential interstate commerce between the man and his out-of-state franchisor.
D The city action impaired the obligation of the man's contract with the franchising company and his rental agreement with the shopping mall.
The correct answer is: The city action denied him procedural due process.
Discussion of correct answer: Procedural due process guarantees a fair decision-making process before the government takes some action directly impairing an individual's life, liberty, or property interests under the Fifth and Fourteenth Amendments. Where such a deprivation occurs that is serious in nature, the procedural safeguards of notice and opportunity to be heard (i.e., hearing) are available. Substantive due process, on the other hand, is a very broad area that judges the compatibility of the substance of government legislation with the Constitution. The man can prove that his restaurant complies with the municipal licensing ordinance, yet city officials have denied him a license. To guarantee a fair decision-making process, the man can strongly argue that he should have been granted an opportunity to be heard and a statement of the reasons for his license denial because the right to engage in gainful employment is a "liberty" interest protected by the safeguards of procedural due process. Whenever the government takes an action that is designed to deprive an individual or limited group, of the freedom to engage in some significant area of human activity, such as terminating the individual's ability to engage in a profession, some procedure to determine the legality of such action is required by the Due Process Clause. This answer choice is therefore correct.
100
A man was recently hired as a professor at a state university. The university had a policy of offering tenue to its professors after three years. Prior to that, the professor could be let go for any reason, though the university typically offered notice and conducted a hearing prior to terminating any professor's employment.
Two and a half years after he was hired, the university administration underwent a change of personnel, and during this period, the professor was told that he was being let go. The professor was never given notice or a hearing prior to his termination.
If the professor sued challenging the constitutionality of the state's action, will the professor succeed?
A No, because a state's procedure with respect to state employees is a matter reserved to the state under the Tenth Amendment.
B No, because he does not have a right to notice and a hearing protected by the Due Process Clause of the Fourteenth Amendment.
C Yes, because he was denied a notice and hearing.
D Yes, because the state's action is an act of attainder.
The correct answer is: No, because he does not have a right to notice and a hearing protected by the Due Process Clause of the Fourteenth Amendment.
Discussion of correct answer: An employee who has no expectation of continued employment (i.e., one who has been hired on an at-will basis) has no due process rights regarding termination. Here, because professors have no expectation of a permanent job until they are offered tenure after three years, they have no property right, and therefore, no entitlement to a hearing. As such, the state's discharge procedure need not be consistent.
101
The legislature of State Z is engaged in debates on the question of regulating acupuncturists. A well-respected practitioner of this specialty became enraged during the heated debate and, in a spontaneous outburst, shouted from the balcony that all the legislators in favor of new extremely rigorous licensing requirements for acupuncturists are "pencil-necked, spineless jerks who could use a needle up their bums." The legislators promptly acted in a display of their power to adopt a rigorous licensing law, with a special provision revoking his license to practice as an acupuncturist. When the acupuncturist challenges the revocation of his license, what is the most likely result?
A. This is an invalid action in violation of his privileges and immunities under Article IV, Section 2.
B. This is invalid, because it deprives him of the right to engage in interstate commerce.
C. This is a bill of attainder, and therefore invalid.
D. This is valid, because a license is only a privilege, and thus there is no right to procedural due process.
C. This is a bill of attainder, and therefore invalid.
102
A 55-year-old man who has just been laid off seeks to apply for a job with a state-run nursing home. The man has been a psychologist for the past 30 years, and he is very well-qualified for the position for which he has applied. However, the man is dismayed to learn that a state law prevents the nursing home from hiring any individual over the age of 50, regardless of the person's qualifications. The man brings an equal protection challenge against the state's law.
What standard of scrutiny applies to this case?
A The state must prove its classification is necessary to achieve a compelling government interest.
B The state must prove its classification is substantially related to an important government interest.
C The man must prove that the classification is not substantially related to an important government interest.
D The man must prove that the law serves no legitimate government interest, or is not rationally related to any legitimate interest.
The correct answer is: The man must prove that the law serves no legitimate government interest, or is not rationally related to any legitimate interest.
Discussion of correct answer: This answer choice is correct because age is not a "suspect" or "quasi-suspect" class. Therefore, any laws or other government actions based on age are subject only to a rational basis scrutiny. Under the rational basis standard of scrutiny, the plaintiff bears the burden of persuasion. Specifically, the plaintiff must show the measure being challenged serves no legitimate government interest, or is not rationally related to any legitimate interest. As such, this answer choice is correct.
103
Concerned by the number of large commercial properties being purchased by foreign nationals, a state legislature enacted a statute prohibiting the sale of commercial properties in excess of 20,000 square feet to aliens. A resident alien who has lived in the state for several years entered into a contract with his business partner to buy a commercial manufacturing business in the state. The factory was 30,000 square feet in size. The resident and the business partner decide to test the constitutionality of the state statute, and so sought a declaratory judgment in federal court.
Which of the following statements regarding the declaratory judgment action is most accurate?
A The business partner has the burden of showing that there is no rational basis for the statute's purposes regarding large commercial properties.
B The court will find that the resident, but not the business partner, has standing.
C The resident has the burden of showing that the state has no compelling interest in carrying out the statute's purposes regarding large commercial properties.
D The state has the burden of showing a compelling state interest in carrying out the statute's purposes regarding large commercial properties.
The correct answer is: The state has the burden of showing a compelling state interest in carrying out the statute's purposes regarding large commercial properties.
Discussion of correct answer: When a state statute discriminates against a suspect class such as aliens, the burden is on the state to show that its actions are necessary to achieve a compelling state interest. In this case, the state statute may violate the Equal Protection Clause by prohibiting aliens from acquiring large commercial properties. The federal court hearing the resident and the business partner's case will apply the strict scrutiny test to the statute to determine whether the law violates the constitutional guarantee of equal protection.
104
Due to a recent nationwide economic depression, a majority of states experienced budgetary issues with the operation of their respective Medicaid systems. After the Department of Health and Human Services reported that the current matching formula used to determine state eligibility for federal Medicaid grants was not providing adequate funding, Congress decided to implement a major overhaul of the program to redistribute budgetary resources. As part of a comprehensive act to amend the original Affordable Care Act, Congress enacted a new rule that removed permanent residents from the list of categories eligible for Medicaid assistance. In protest, a civil liberties group brought a cause of action against the Department of Health and Human Services, claiming that the rule violates the Due Process Clause of the Fifth Amendment.
Which of the following correctly states the burden of persuasion applicable to this case?
A The group must show that the rule has a disproportionately discriminatory effect.
B The group must show that the rule has no legitimate governmental interest.
C The Department must show an exceedingly persuasive justification of an important interest.
D The Department must show that there is no less restrictive alternative means available.
The correct answer is: The group must show that the rule has no legitimate governmental interest.
Discussion of correct answer: While it is true that alienage is a suspect classification, federal laws that discriminate against aliens are not subject to the strict scrutiny standard of review applicable to discriminatory state laws. This is because Congress has broad plenary power to regulate immigration. Federal laws that discriminate on the basis of alienage are subject only to a rational basis analysis (i.e., the burden of persuasion is on the plaintiff to show that the measure being challenged serves no legitimate government interest or is not rationally related to any legitimate interest). Since this choice accurately applies the rational basis standard, it is the correct answer.
105
A state has a policy of hiring new state attorneys on a probationary basis for a two-year period. Prior to the end of those two years, the lawyer can be let go for any reason. After those two years, the lawyer receives the added job security of only being able to be fired "for cause". The state has followed no consistent pattern with respect to the termination of probationary employees. Some were fired with no explanation or warning. Others were given hearings after notice, during which their job performance as probationary employees was discussed.
If a probationary employee who was terminated without a hearing challenged the constitutionality of the state's action, how should the court rule?
A The employee would succeed, because she was denied a notice and hearing.
B The employee would succeed, because the state's action is an act of attainder.
C The employee would not succeed, because a state's procedure with respect to state employees is a matter reserved to the state under the Tenth Amendment.
D The employee would not succeed, because she does not have a right to notice and a hearing protected by the Due Process Clause of the Fourteenth Amendment.
The correct answer is: The employee would not succeed, because she does not have a right to notice and a hearing protected by the Due Process Clause of the Fourteenth Amendment.
Discussion of correct answer: An employee who has no expectation of continued employment (i.e., one who has been hired on a probationary basis) has no due process rights regarding termination. Here, because probationary employees have no expectation of a permanent job when they are hired by the state, they have no property right, and therefore, no entitlement to a hearing, so the state's discharge procedure need not be consistent.
106
A local microbrewery marketed a 12 percent alcohol content beer called "Bomber Beer." The labels on the bottles of Bomber Beer displayed the alcohol content directly below the words "Bomber Beer" in type almost as large as that of the brand name. A state’s attorney general notified the brewery that under a state law to prevent "strength wars," breweries were forbidden to display the alcohol content of beer anywhere on beer bottle labels or beer cans. The brewery refused to change the labels for "Bomber Beer." The state sued the brewery under the state's labeling statute. How should the court rule?
a. In favor of the brewer, because the labeling statute does not directly advance the state's interest in preventing "strength wars," and is more extensive than necessary to serve a substantial interest.
b. In favor of the brewer, because a government cannot completely ban truthful advertising of any harmful yet lawful product or service.
c. In favor of the state, because a state may completely prohibit commercial speech about harmful yet lawful products.
d. In favor of the state, because the labeling law served a substantial governmental interest, directly advanced that interest, and was narrowly tailored to serve that interest.
a. (In favor of the brewer, because the labeling statute does not directly advance the state's interest in preventing "strength wars," and is more extensive than necessary to serve a substantial interest.
107
A state legislature begins each day's session with a nondenominational prayer. The prayer is led by a pastor who is paid for the task by the legislature. Is the prayer constitutional?
a. Yes, because prayers led by government employees cannot violate the Establishment Clause.
b. Yes, because nondenominational legislative prayers do not violate the Establishment Clause.
c. No, because it is a government endorsement of religion.
d. No, because even nondenominational legislative prayers violate the Establishment Clause.
b. Yes, because nondenominational legislative prayers do not violate the Establishment Clause.
108
In response to concerns about the rising costs of state funded graduate studies programs, the state legislature passed a law that required students applying to any two-year state university graduate studies program to provide proof of United States citizenship before being allowed to enroll as a student. The constitutionality of the statute was challenged by an immigrants' rights group.
Is this statute constitutional?
A Yes, because the law limits public benefits to both citizens and non-citizens.
B Yes, because the law is related to an important government function.
C No, because the law deprives non-citizens of their equal protection rights.
D No, because the law deprives non-citizens of an implied fundamental right.
The correct answer is: No, because the law deprives non-citizens of their equal protection rights.
Discussion of correct answer: State laws that discriminate against aliens are generally subject to strict scrutiny under the Equal Protection Clause of the Fourteenth Amendment. This means that such laws must be necessary to further a compelling state interest. In this case, the asserted government interest (concern about rising costs of higher education) would not be a sufficiently compelling government interest to permit the state to exclude non-citizens from its public universities. Moreover, the Supreme Court has held that denying aliens access to financial aid for higher education violates the Equal Protection Clause [Nyquist v. Mauclet, 432 U.S. 1 (1977)].
109
Congress passed a statute designed to improve the education provided to students in high schools. The statute provides for the federal government to pay salary supplements to teachers with advanced degrees, in amounts up to 10% of teachers' existing salaries. The funding is available to teachers in all public and private high schools licensed by state educational authorities, including those operated by religious organizations. The statute states that no supplement is permitted for any teacher who teaches courses on religious subjects. A federal taxpayer challenges the salary supplements for teachers in private schools where religious instruction is included in the curriculum. On the substantive constitutional issue, should the salary supplements be found valid?
a. Yes, because the statute provides that no supplements will be made to teachers who are engaged in any religious instruction.
b. Yes, because to distinguish between private and public-school teachers would violate the Free Exercise Clause of the First Amendment.
c. No, because some religions would benefit disproportionately.
d. No, because the policing of the restriction would amount to an excessive entanglement with religion.
d. No, because the policing of the restriction would amount to an excessive entanglement with religion.
110
Lawmakers and citizens of one state were appalled when national newspaper headlines mocked the state’s motto “The State that Reads” by changing it to “The State that Breeds.” The headlines were precipitated by a report finding that the state had the highest number of teenage pregnancies in the nation. To combat the still-rising teen pregnancy rate, the state enacted new legislation implementing an aggressive sex-education program in the public high schools. The program, launched pursuant to the new statute, offered teenagers extensive information on sex and health-related issues, ranging from abstention to adoption, but excluded any information about abortion. The state legislature appropriated funds for the program. The statute also provided funds for health clinics to be run on-site at all high schools during school hours. The statute specifically prohibited “the teaching or distribution of literature about abortion in sex education classes on school grounds” and “the use of state funds for abortion counseling or abortion services at on-site school clinics.” Children With Children (CWC), a group of pregnant high school students, filed suit challenging the statute as violating due process.
How will the court likely rule with regard to the constitutionality of the statute?
(A) Constitutional, because the statute does not place an undue burden on abortion rights.
(B) Constitutional, because the state is not obligated to fund abortion programs.
(C) Unconstitutional, because the statute infringes upon the First Amendment rights of teachers and clinic employees.
(D) Unconstitutional, because the statute places an undue burden on the fundamental right to abortion.
(A) Constitutional, because the statute does not place an undue burden on abortion rights.
111
The plaintiff has held various public offices for many years, and is currently a state representative. After a recent scandal broke involving inappropriate text messaging with a minor, the plaintiff was convicted of felony obscenity charges, and was sentenced to time served and placed on probation. A week after the conviction was announced, the plaintiff was informed that, pursuant to a state statute, he was being immediately suspended from office without pay until such time as he had exhausted his appeals. Should his conviction become final, another statute authorized the attorney general to file suit to permanently remove the plaintiff from office, following a hearing on the matter and appellate review of the hearing decision. The plaintiff filed suit to prevent his suspension, claiming that the state statute was an unconstitutional bill of attainder and a violation of his due process rights.
How should the court rule?
A The plaintiff will prevail, because the statute violated his procedural due process rights.
B The plaintiff will prevail, because the statute was an unconstitutional bill of attainder.
C The state will prevail, because the statute provided for a judicial hearing.
D The state will prevail, because the statute was not a bill of attainder.
The correct answer is: The state will prevail, because the statute was not a bill of attainder.
Discussion of correct answer: Sections 9 and 10 in Article I of the U.S. Constitution bar both federal and state legislatures from passing bills of attainder. A bill of attainder is a legislative act that inflicts punishment without a judicial trial upon named individuals or an easily ascertainable group for past conduct. However, courts have held that laws suspending felons from public office or denying them the right to vote are not penal in nature, as their purpose is more to protect the integrity of the political process rather than to punish the criminal [Spooner v. West Baton Rouge Parish School Bd., 709 F. Supp. 705 (M.D. La. 1989); Trop v. Dulles, 356 U.S. 86 (1958)]. As such, the suspension statute in this state is not an unconstitutional bill of attainder.
112
A state law provided free public education for all children in the state between the ages of five and 19, and made schooling compulsory for children between the ages of five and 16. Another state law provided that principals of public schools had the authority to suspend any student for up to 10 days for misconduct.
Several students at a public high school organized a walkout to protest the state's business ties with a foreign dictatorship. The principal suspended all of the members of a student group that the principal suspected had organized the walkout for 10 days based on a school rule that prohibited organized walkouts. The members of the student group requested an opportunity to plead their case to the principal, but the principal denied the request. The parents of the students suspended for 10 days sued the school district, contending that the suspension law was unconstitutional.
How should the court rule?
A In favor of the school district, because under the circumstances, the students did not have the right to a trial-type hearing.
B In favor of the school district, because schools are provided latitude in their administrative decision-making.
C In favor of the parents, because adequate procedural due process mandates at least a minimum form of a hearing before the imposition of a significant disciplinary suspension.
D In favor of the parents, because the students had a right to a trial-type hearing before the imposition of the suspension.
The correct answer is: In favor of the parents, because adequate procedural due process mandates at least a minimum form of a hearing before the imposition of a significant disciplinary suspension.
Discussion of correct answer: Both the Fifth and Fourteenth Amendments protect against the deprivation of "life, liberty or property without the due process of the law." Where there is a deprivation of one's life, liberty, or property interests, one is entitled the procedural safeguards of some form of notice and hearing. There is a constitutionally protected property interest in the entitlement to continued attendance at a public school. In Goss v. Lopez [419 U.S. 565 (1975)], the U.S. Supreme Court stated that a significant suspension for disciplinary reasons (e.g., 10-day duration) cannot be imposed without at least a minimum form of hearing before the suspension is imposed. However, a student is not entitled to a trial-type hearing when his dismissal or suspension is with just cause. In this question, although a walkout was clearly against school rules and the suspension might be considered to have a just cause, the principal denied the students any type of hearing before the suspension was to take place. Thus, the suspension statute violated the suspended students' right to adequate procedural due process. Also note that the principal's decision might have been arbitrary, as he suspended all members of the student group. The question did not state that all members of the group took part in the walkout.
113
A state instituted a new health insurance plan, hoping to encourage preventative medicine and improve access to treatment by spreading out the cost across the state. All state residents are eligible for medical coverage under the plan. The premiums to be paid by each insured are determined by a formula based on each insured's income and the health costs where the insured lives. The state has not denied coverage to any applicant who has applied for health insurance. Residents of a large, urban community pay the highest health insurance premium rates charged by the health insurance plan. Fifty-five percent of the community's population is African-American. The African-American citizens of the community filed a discrimination suit based on the health insurance plan's insurance premium scheme, claiming its application violated their right to equal protection.
Assuming proper standing, how will the court likely decide?
A The plaintiffs will prevail, because the insurance premium scheme cannot survive strict scrutiny.
B The plaintiffs will prevail, because the insurance premium scheme cannot survive intermediate scrutiny.
C The law will be upheld, because it passes intermediate scrutiny.
D The law will be upheld, because it passes the rational basis test.
The correct answer is: The law will be upheld, because it passes the rational basis test.
Discussion of correct answer: Under the Equal Protection Clause, laws that are not subject to strict scrutiny or intermediate scrutiny need only pass the rational basis test. The plaintiff has to prove that the law is not rationally related to a legitimate government interest. Such is the case here. For strict or intermediate scrutiny to apply, there has to be purposeful discrimination, not just a discriminatory effect. Because the premium scheme is not discriminatory on its face, the plaintiffs would have to show that it was being applied in a discriminatory fashion, in this case, based on race, which is a suspect classification. However, they will not be able to show that. All of the residents who apply for the insurance in their urban neighborhood will have to pay the same rate, regardless of race. There aren't any exceptions being made to non-African Americans in that community. The community pays a higher premium due to either the high incomes in the neighborhood or the cost of running hospitals and clinics in that area (or some combination thereof). As long as the premium scheme is being applied to that community in the same way as every other community in the state, the scheme will only need to pass the rational basis test. The state has a legitimate interest in the availability of health insurance to its citizens and in the promotion of preventative medicine that can keep overall costs down. The premium scheme is rationally related to serving that interest by allocating costs in a reasonable manner.
114
An instructor has worked in the English department of a state maritime academy, a college-level institution, for four years. During that time, she has worked on a full-time basis under one-year renewable contracts. Academy rules provide that instructors working on contract must obtain a Ph.D. in their discipline to have their contracts renewed beyond the fifth year. Any instructor who is rehired for a sixth year automatically attains the rank of assistant professor with tenure. The instructor has not yet obtained her doctoral degree, in part because her teaching duties prevent her from finishing her own degree requirements. Several weeks before the beginning of the fall semester, the academy informs the instructor that her contract will not be renewed. It is unusual, but not unheard of, for a contract decision to be made so late in the summer. The academy does not provide the instructor with any reason for not renewing the contract. The instructor has consistently received highly positive student evaluations of her teaching, and she is stunned that she will not be teaching the courses she has prepared over the summer.
Assuming all are true, which of the following is the instructor's strongest argument for her right to notice and an opportunity to be heard about her employment at the academy?
A Of the three English instructors working on a contract basis, only the instructor's employment was terminated.
B The instructor and her family rented a house closer to the campus with the expectation that she would be commuting to the academy for at least one more year.
C The president of the academy orally agreed to renew the instructor's contract for a fifth year.
D Some of the tenured faculty members in the English department lack doctoral degrees.
The correct answer is: The president of the academy orally agreed to renew the instructor's contract for a fifth year.
Discussion of correct answer: Public employment is a protected property right only when the employee can be terminated only "for cause," either by statute, employment contract, or informal policies or customs of the workplace. Here, if the instructor had an oral employment contract with the president of the academy, the refusal to renew her contract would breach that agreement, meaning that the instructor was deprived of her property right (her employment) without being given any reason for her termination and without a hearing. Such a dismissal would therefore violate the Due Process Clause. As such, this is the instructor's strongest argument.
115
A federal statute retroactively permits women with 30 years of railroad service to retire at age 60 with full retirement benefits. However, men with 30 years of service receive reduced benefits if they retire between their 60th and 65th birthdays. A male retired railroad employee, age 63, claims the statute is invalid on the grounds that it amounts to unconstitutional discrimination. The retired employee institutes a class action suit in an appropriate federal court seeking injunctive relief, as well as retroactive and prospective retirement benefits for those male employees with 30 years of service who received reduced employment benefits.
Which of the following would provide the strongest argument that the statute is unconstitutional?
(A) The Equal Protection Clause of the Fourteenth Amendment.
(B) The Due Process Clause of the Fifth Amendment.
(C) The Contract Clause of Article I, Section 10.
(D) The Article IV Privileges and Immunities Clause.
(B) The Due Process Clause of the Fifth Amendment.
116
In an effort to work towards change in his community, a resident non-citizen ran for a position on the local city council. The man's name was not included on the ballot because of a statute which prohibited non-citizens from holding positions on the city council. The man challenged the statute as violating the Equal Protection Clause. The city claimed the statute was justified because city council members influence community members' views toward government. The case went to the Supreme Court to determine whether the statute was constitutional.
How should the Supreme Court rule?
A The statute is constitutional, because the city council performs a function of the government.
B The statute is constitutional, because non-citizens do not have constitutional rights.
C The statute is unconstitutional, because the statute does not pass intermediate scrutiny.
D The statute is unconstitutional, because the law furthers no compelling state interest.
The correct answer is: The statute is constitutional, because the city council performs a function of the government.
Discussion of correct answer: Alienage is a suspect classification. Any state law that discriminates against non-citizens warrants strict scrutiny. Generally, laws which are based on suspect classifications are presumed to be invalid. However, alienage is different than race and national origin, two of the other suspect classifications. States are allowed to discriminate against non-citizens in activities where participation in the functioning of government is involved. One reason for allowing this restriction is to keep non-citizens from influencing others' views towards the government and the political process. Here, the man was prevented from becoming a member of the city council because he is a non-citizen. Because the city council is performing a function of the government, this type of statute would be perfectly permissible.
117
A father of four children was killed in a work-related automobile accident, which was covered by the state workers' compensation insurance. Three of the children successfully received all of their entitled benefits in accordance with the insurance policy. However, the fourth child, who was born to a different mother outside of marriage, only received one-eighth of his allotted share of compensation, because the total benefits available were virtually exhausted to first meet the claims of the other children. When the fourth child challenged his distribution, the state workers' compensation board stated it was in compliance with a regulation that prioritized the claims of children born inside a marriage over those who are not.
If the fourth child files suit on Fourteenth Amendment grounds, should the regulation be upheld?
A Yes, if the state shows there is no less restrictive alternative means available.
B Yes, if the child fails to show the rule has an underlying discriminatory purpose.
C No, if the child shows the rule lacks a substantial relationship to an important state interest.
D No, if the state fails to show an exceedingly persuasive justification for an important interest.
The correct answer is: No, if the state fails to show an exceedingly persuasive justification for an important interest.
Discussion of correct answer: A distinction drawn between legitimate and illegitimate children constitutes a quasi-suspect classification, subject to an intermediate scrutiny standard of review. This means that a state law favoring legitimates and disfavoring illegitimates will be upheld only if the state can prove that the measure is substantially related to the achievement of an important state interest. "Substantially related" means that an exceedingly persuasive justification must be shown. Here, the state regulation prioritized the distributions of workers' compensation benefits to the three children over the fourth child due to the fact that he was born outside of marriage. Since this choice accurately states the burden of persuasion under intermediate scrutiny, it is the correct answer.
118
As part of a new defense bill, Congress requires that 5% of all federal defense contracts must be awarded to businesses which have greater than 50% of their ownership interests or stock held by racial minorities. Floor statements from supporters of the provision made clear that its purpose was to promote diversity among government contract recipients and to encourage economic opportunity for minority-owned businesses. The provision has been challenged by a government defense contractor that does not satisfy the 50% racial minority ownership requirement, and which believes it would have been awarded a contract in the absence of the provision.
Is this statute constitutional?
A Yes, because diversity is a compelling government interest.
B Yes, because the statute remedies the effects of past discrimination.
C No, because the provision is not tailored to advance a compelling government interest.
D No, because the provision does not serve an important government interest.
The correct answer is: No, because the provision is not tailored to advance a compelling government interest.
Discussion of correct answer: When the government uses race preferences in allocating some benefit, it must satisfy strict scrutiny, which requires narrow tailoring to support a compelling government interest. Here, neither of the asserted interests (diversity and economic opportunity) have been generally recognized as "compelling" in the affirmative action context--the only interests that have been recognized are remedying past discrimination and diversity in the limited context of university admissions. Neither of these compelling interests are present here, so the statute fails.
119
An electrician lived in a small, economically depressed city. When he had an opportunity to move to the capital city of his state, the electrician jumped at the chance, hoping to better his circumstances. The electrician rented an apartment and contacted the local cable company to initiate service. However, the electrician was shocked to learn that the premium cable television package and Internet connection would cost 200 percent more in the capital city than the reasonable monthly fee he paid in his previous residence. The cable company was licensed by the state to serve the capital and had a virtual monopoly in the city, with no real competitors. The cable company, like other cable companies operating in the state, was regulated by the state, but the cable company set its own rates. Outraged by the high monthly charges and feeling like a hostage to the cable company’s monopoly, the electrician filed suit in state court, claiming rate discrimination in violation of the Fourteenth Amendment of the U.S. Constitution.
What is the likely outcome of the electrician’s lawsuit?
(A) The electrician will prevail, because the cable company is under the regulatory authority of the state.
(B) The electrician will prevail, because the high rates set by the cable company are discriminatory.
(C) The cable company will prevail, because the electrician has no basis for an equal protection claim.
(D) The cable company will prevail, if the rate discrepancy between cities is rationally related to a legitimate government interest.
(C) The cable company will prevail, because the electrician has no basis for an equal protection claim.
120
In the wake of the federal government suspending welfare benefits and subsidized medical care, states began to see a significant influx in citizens claiming such benefits under state programs. One state in particular, which provided better coverage than most others, soon found that many people were moving into the state for the sole purpose of claiming these benefits. In response to the suddenly increased drain on the state budget, the legislature passed a bill requiring that anyone filing a claim for welfare or state-subsidized medical care show proof of having resided within the state for at least one year prior in order to be eligible for such benefits.
A woman moved to the state six months ago for a job, but was currently unemployed after being fired due to downsizing. The woman applied for state welfare benefits, but her application was denied because she had not been in the state for a full year. The woman filed a proper suit challenging the constitutionality of the statute.
Is the statute constitutional?
A No, because it discriminates against the poor in violation of the Equal Protection Clause.
B No, because it violates the Privileges and Immunities Clause of Article IV, Section 2.
C Yes, because it is rationally related to a legitimate government interest.
D Yes, because it violates the Due Process Clause of the Fourteenth Amendment.
The correct answer is: No, because it violates the Privileges and Immunities Clause of Article IV, Section 2.
Discussion of correct answer: The Privileges and Immunities Clause of Article IV, Section 2 protects the fundamental right of citizens to travel freely from state to state. Pursuant to this, durational residency requirements for dispensing government benefits are subject to strict scrutiny. While a reasonable residency requirement would likely be found valid, a one-year waiting period before being able to receive welfare benefits or state-subsidized medical care has been found invalid.
121
A statute of the state of X provides that "it is a misdemeanor for any person or organization to engage in the sale, trade, or other exchange of any non-food goods or other property without a class five commercial license, unless such person or organization is otherwise exempted from the operation of this section by law." Another statute provides that a person engaged in the sale of goods in connection with the funding or other activities of a religious, charitable, or educational organization need not possess any license as to those sales. A saleswoman has been charged with selling goods without a license in violation of law in connection with numerous transactions wherein she went door-to-door in residential neighborhoods selling cosmetics. The saleswoman has admitted that she possessed no license issued by state X, but claims that she is a disciple of a television evangelist who preaches that personal wealth is a sign of the blessedness of God. The saleswoman asserts that it is her religious duty to accumulate as much money as possible before she dies in order to assure that her soul will be permitted into Heaven, so her sales of cosmetics were for religious purposes and thus exempt from the sales-licensing law. The saleswoman waived trial by jury, and all of the above facts were established by competent evidence. Should the judge convict her?
a. Yes, because he could determine that her religious beliefs are patently false and may be part of a scheme to evade the licensing statute.
b. Yes, because nondiscriminatory regulation of religious activities does not violate the Free Exercise Clause.
c. No, because it would violate her rights under the Free Exercise Clause for the court to assess the truth or validity of her religious beliefs.
d. No, because the state may not regulate the practice of sincerely held religious beliefs.
c. No, because it would violate her rights under the Free Exercise Clause for the court to assess the truth or validity of her religious beliefs.
122
A state resident could purchase a license solely for hunting elk for $9.00. A nonresident, in order to hunt elk, was required to purchase a combination license at a cost of $225.00; this entitled him to take one elk, one deer, and one black bear. A nonresident, however, could obtain a license restricted to deer for $51.00. A resident was not required to buy any combination of licenses but if he did, the cost to him of all the privileges granted by the nonresident combination license was $30.00. Due to its successful management program for elk, the state has not been compelled to limit the overall number of hunters by means of drawings or lotteries, as have other states. Elk are not hunted commercially in the state. Nonresident hunters seek the animal for its trophy value; the trophy is the distinctive set of antlers. Whereas the interest of resident hunters more often may be in the meat, among nonresident hunters, big-game hunting is clearly a sport in the state. Two residents of another state bring suit against the state. They assert in their complaint that the disparities between residents and nonresidents in the state hunting license system is unconstitutional.
How should the court rule on the state’s hunting license system?
(A) The license system is constitutional, because it is within the police power of a state to regulate a recreational, noncommercial activity.
(B) The license system is constitutional, because there is a compelling state interest.
(C) The license system is unconstitutional, because it violates the Privileges and Immunities Clause of Article IV, Section 2.
(D) The license system is unconstitutional, because it violates the Equal Protection Clause of the Fourteenth Amendment.
(A) The license system is constitutional, because it is within the police power of a state to regulate a recreational, noncommercial activity.
123
A state faced a budgetary deficit. The state did not have a state income tax. However, in an effort to close the budgetary gap, the state legislature passed a bill that placed a one-percent income tax on out-of-state residents who worked in the state. The governor signed the bill into law. An out-of-state resident sued the head of the state's taxing authority to enjoin the collection of the income tax. How should the court rule?
A. In favor of the state, because the tax did not violate the Commerce Clause.
B. In favor of the state, because the state, as a market participant, may discriminate against nonresidents.
C. In favor of the taxpayer, because under the Privileges and Immunities Clause, the law impermissibly discriminates against nonresidents.
D. In favor of the taxpayer, because the benefits of the law did not outweigh the burden on interstate commerce.
C. In favor of the taxpayer, because under the Privileges and Immunities Clause, the law impermissibly discriminates against nonresidents.*favors the challenger**
124
A man who was legally blind applied for admission to a state medical school. The medical school is a state institution and receives financial grants from the state government. After receiving notice of his rejection, the man contacted the director of admissions, who admitted that the man was denied admission solely due to the fact that he was blind. The man has since initiated an appropriate action against the medical school asserting that his equal protection rights have been violated.
Which of the following correctly states the applicable burden of persuasion?
A The man bears the burden to show the medical school's actions are not rationally related to a legitimate state interest.
B The man bears the burden to show the medical school's actions do not further a compelling state interest.
C The medical school has the burden to show that the man's denial of admission furthers an important state interest.
D The medical school has the burden to show that the man's denial of admission is rationally related to a legitimate state interest.
The correct answer is: The man bears the burden to show the medical school's actions are not rationally related to a legitimate state interest.
Discussion of correct answer: Discrimination based on a physical disability such as blindness implicates neither a fundamental right nor a suspect class. As such, rational basis scrutiny would be applied. The burden of persuasion would be on the plaintiff, the man, to show that the medical school's actions are not rationally related to a legitimate state interest. Students should note, however, that not all rational basis challenges fail. In Romer v. Evans [517 U.S. 620 (1996)], a Colorado law that prohibited any state entity from enacting measures that protected gays and lesbians from discrimination "flunked" the rational scrutiny test on two grounds. First, no legitimate interest was served by singling out a politically unpopular group and forbidding them the safeguards other persons enjoy. Second, the means used were not rationally related to the end result of protecting other citizens' freedom of association. In general, where discrimination motivated by an animus or hostility towards a particular group occurs, such legislation will be struck down. In this question, the man would have to show such invidious discrimination. Notwithstanding certain protections created by state governments and Congress (notably, the ADA) to prevent discrimination against persons with disabilities, the fact that the man was rejected based on his blindness per se does not warrant the use of heightened equal protection scrutiny.
125
The state legislature enacted a statute requiring permanent removal from parental custody of any child born to a mother currently receiving state welfare payments. A young mother recently lost her job and had been receiving state welfare assistance. She now has given birth to her second child and the state brought an action under the statute to terminate her custody rights solely because she was receiving the state welfare payments. Her defense is based on the ground that the statute is unconstitutional as applied.
Which is the most probable burden of persuasion on this constitutional issue?
(A) The state has the burden of persuading the court that the application of the statute to the mother is necessary to vindicate a compelling government interest
(B) The state has the burden to persuade the court that the application of the statute to the mother is rationally related to a legitimate government interest.
(C) The mother has the burden of persuading the court that the application of the statute to her conduct is not necessary to vindicate an important state interest.
(D) The mother has the burden of persuading the court that the application of the statute to her conduct is not rationally related to a legitimate state interest.
(A) The state has the burden of persuading the court that the application of the statute to the mother is necessary to vindicate a compelling government interest
126
A state has passed a law requiring all childbirths within the state to be performed in hospital facilities by state-licensed physicians, except in certain enumerated emergency situations. The law was enacted because of public health concerns. The state department of health conducted a study showing a significantly higher infant mortality rate for home births than for those performed in hospitals. A pregnant woman who is a resident of the state wants to have her childbirth at home with the assistance of a midwife. The woman has filed suit challenging the constitutionality of the state statute. Is the state statute constitutional?
a. Yes, if despite the fact that the regulation has a substantial impact on a fundamental right, it furthers a compelling state interest.
b. Yes, because the regulation is rationally related to a legitimate state interest in advancing the public health.
c. No, because the regulation has a substantial impact on a fundamental right.
d. No, because the regulation discriminates against women on the basis of pregnancy, and it is not substantially related to an important state interest.
a. Yes, if despite the fact that the regulation has a substantial impact on a fundamental right, it furthers a compelling state interest.
127
The State of South Carolina owned and operated an office building located in the capital city of Columbia. The building served as the headquarters of the state's Department of Employment. In order to encourage people to seek assistance with filing unemployment claims at the Department's Columbia office, the government leased a vacant space on the building's ground floor to a bookstore specializing in occupational handbooks and career development resources. The bookstore attracted people to the Columbia office, and the Department was able to help many applicants successfully file for unemployment benefits. One day, a jobseeker from Myrtle Beach walked into the bookstore, only to have a sales clerk immediately eject him from the store on the basis of his Middle Eastern descent. The jobseeker is now suing in federal district court seeking an injunction preventing the bookstore from operating in a racially discriminatory manner.
How should the federal district court rule?
A For the jobseeker, based on the bookstore's public function.
B For the jobseeker, based on the Fourteenth Amendment.
C Against the jobseeker, based on the Privileges and Immunities Clause.
D Against the jobseeker, based on the Comity Clause of Article IV.
The correct answer is: For the jobseeker, based on the Fourteenth Amendment.
Discussion of correct answer: The Fourteenth Amendment provides that no state shall deny to any person within its jurisdiction the equal protection of the laws. Generally, such constitutional rights can only be violated by government action. However, state action can be found in the actions of private actors where the government and private entity are so closely related that the action by the private party fairly can be treated as action by the government. Here, the bookstore was interrelated to the government purpose of serving as a resource to the unemployed and attracting people to the Department's Columbia office. Based on this interplay, the court may find the bookstore's exclusion of the jobseeker was a violation, even though no government agency was directly discriminating.
128
The state legislature made a finding that football was too dangerous for the participants to play because of the danger of concussions. The state legislature passed a statute prohibiting official football games to be held in their state. For the past ten years, a football association has rented an arena in the state to hold football games during the year. If the association should bring suit to challenge the constitutionality of the statute, how would the court rule the statute?
A. Unconstitutional, unless authorized by Congress.
B. Unconstitutional, because all of the participants in the football games are engaging in interstate commerce.
C. Constitutional, because the local interest in safety outweighs the burden on interstate commerce.
D. Constitutional, because the business of football is operated for a profit.
C. Constitutional, because the local interest in safety outweighs the burden on interstate commerce.
129
A state enacted a law requiring that undocumented immigrants employed in positions where they operate agricultural machinery must undergo 20 hours of state-approved training. No other workers employed in positions involving the operation of agricultural machinery besides undocumented immigrants are required to undergo the training.
In a suit brought challenging the law on equal protection grounds, what will be the applicable burden of persuasion?
A The government will have to show that the measure is necessary to further a compelling interest.
B The government will have to show that the measure is substantially related to the achievement of an important governmental interest.
C The plaintiff will have to show the measure is not substantially related to the achievement of an important governmental interest.
D The plaintiff will have to show that the measure serves no legitimate government interest or is not rationally related to any legitimate interest.
The correct answer is: The plaintiff will have to show that the measure serves no legitimate government interest or is not rationally related to any legitimate interest.
Discussion of correct answer: Laws making classifications based on illegal alienage are only held to a rational basis analysis. Not that this is a different standard than for aliens who are not illegal. The applicable standard for rational basis analysis is that the plaintiff will have to show that the measure serves no legitimate government interest or is not rationally related to any legitimate interest. As a test tip, when deciding if a statute on its face violates equal protection, decide whether you think the state, or the undocumented immigrants will win. That will make it easier to decide which side has the burden of persuasion, because if the state will probably win, the burden should be on the undocumented immigrants and if the undocumented immigrants will probably win, the burden should be on the state. Because undocumented immigrants have not been held to be a suspect class, only rational basis analysis will apply and the burden should be on the undocumented immigrants.
130
Federal marshals perform a variety of law enforcement functions, including apprehension of fugitives, the protection of federal judges, and guarding federal courthouses. Suppose that Congress, concerned about making sure that federal marshals are physically capable enough to handle the demands of the job, especially the apprehension of fugitives, passes a law requiring that all federal marshals retire at age 45. After the publication of a study demonstrating that some officers in their late 40s are as physically capable of performing law enforcement functions as younger officers, a group of marshals facing mandatory retirement under the law brings a Fourteenth Amendment challenge to the law in federal court.
Does the requirement of mandatory retirement at age 45 violate the federal Constitution?
A Yes, because age is a quasi-suspect classification that triggers strict scrutiny.
B Yes, because the requirement is irrational.
C No, because Congress has plenary power to regulate federal law enforcement agencies.
D No, because the requirement is reasonably related to a legitimate government purpose.
The correct answer is: No, because the requirement is reasonably related to a legitimate government purpose.
Discussion of correct answer: Classifications made on the basis of age receive rational basis scrutiny. Under this standard, the rule need only be rationally related to a legitimate state interest. Ensuring the physical aptitude of federal law enforcement officers is a legitimate state interest, and since people's physical prowess tends to decline with age, the interest would be directly advanced by the mandatory retirement rule. The fit between age and physical aptitude need not be perfect; Congress need only show some relationship, and that would be relatively easy to demonstrate since the burden on challengers to the law would be to show that the law was irrational. Thus, in Massachusetts Board of Retirement v. Murgia [427 U.S. 307 (1976)], the Supreme Court held upheld a state law requirement that police officers retire at age 50, even where they were as physically fit as younger officers.
131
A state statute limits the elective office of mayor in its cities to U.S. citizens. Nevertheless, a non-citizen permanent resident is elected mayor of a city in the state. Solely because he is not a citizen, the Secretary of State refuses to issue the required certificate of election to the mayor-elect. The mayor-elect sues in federal court, claiming that the requirement that a mayor must be a U.S. citizen is unconstitutional.
Is the citizenship requirement constitutional?
A Yes, because holding elective public office is a privilege and not a right, so it is not protected by the Due Process Clause.
B Yes, because the state has a legitimate interest in limiting governmental positions that formulate or execute discretionary public policy to U.S. citizens.
C No, because the classification is unnecessary to vindicate a compelling government interest.
D No, because the citizenship requirement interferes with the federal government's exclusive authority over aliens.
The correct answer is: Yes, because the state has a legitimate interest in limiting governmental positions that formulate or execute discretionary public policy to U.S. citizens.
Discussion of correct answer: Most state or local government regulations that intentionally discriminate against aliens will be struck down unless necessary to advance a compelling government interest. However, when the government discrimination against aliens involves the right to participate in the processes of government (voting, holding elective office) or to hold positions where broad public policy is executed or formulated (police officers, elementary and secondary public school teachers, probation officers), then the discrimination against aliens need only be rationally related to a legitimate government interest.
132
An anti-war protest group wore red hats to symbolize their opposition to a current war. They planned a silent protest march in a town to protest the war and obtained the necessary permits to hold the march. However, many of the town's residents were opposed to the political stance of the group and stated in the local press their intention to show up at the protest march in order to disrupt it. Faced with this dilemma, the town council passed an ordinance that forbade any group of three or more persons from wearing red hats in public, with the exception of organized sports teams. The anti-war protest group sued to enjoin the town from enforcing the ordinance. Assuming proper standing, how should the court rule?
A. In favor of the group, because the wearing of red hats by the group was symbolic speech, which is absolutely protected by the First Amendment.
B. In favor of the group, because the intent of the ordinance was to suppress speech and the burden on speech was greater than necessary.
C. In favor of the town, because the wearing of red hats by the protesters presented a clear and present danger.
D. In favor of the town, because the ordinance furthered an important governmental interest, was unrelated to the suppression of speech, and the burden on speech was no greater than necessary.
B. In favor of the group, because the intent of the ordinance was to suppress speech and the burden on speech was greater than necessary. **not narrowly tailored**
133
After living together for three years, Luke and Sharon planned their wedding. They already shared a joint household account, contributed to each other's educational expenses, and owned a house in the name of "Luke and Sharon Lindsay," although Sharon's surname was Snow. Two weeks before their wedding, Luke was killed in a commuter rail accident when a train engineer entered a station at a high rate of speed and struck Luke, who was standing at the edge of the platform and did not have time to escape. Blood tests were performed on the engineer, who tested positive for cocaine. At the time of Luke's death, the equity in Luke and Sharon's home was $60,000, half of which had been paid by each. Sharon filed a wrongful death suit against the train engineer and the commuter rail service, which was a state-run business. Sharon's suit was dismissed based on interpretation of the state's wrongful death statute defining an "heir" of a decedent as one who is the spouse, parent, grandparent, aunt, uncle, or linear descendant of the decedent.
If Sharon appeals the decision, what is her strongest constitutional argument that the statute is invalid?
A The statute violates Sharon's right to due process of law by depriving her of the opportunity to present evidence of her familial relationship with Luke.
B The statute violates Sharon's substantive due process rights.
C The statute violates the Equal Protection Clause, because there is no rational basis for permitting wrongful death suits by spouses, but prohibiting wrongful death suits by people who are similarly situated but not married.
D The statute violates the Privileges and Immunities Clause of the Fourteenth Amendment.
The correct answer is: The statute violates the Equal Protection Clause, because there is no rational basis for permitting wrongful death suits by spouses, but prohibiting wrongful death suits by people who are similarly situated but not married.
Discussion of correct answer: The court may apply the rational basis test to the state statute and find that the statute violates equal protection rights. The Equal Protection Clause of the Fourteenth Amendment prohibits the states from denying any person the equal protection of the laws. In cases involving intentional discrimination on the basis of a suspect class or impingement of a fundamental right, the court applies the strict scrutiny test to determine whether the state has a compelling interest in its government action. In Sharon's situation, no intentional discrimination against a suspect class or fundamental right is at issue, so the strict scrutiny test would not be applied. In cases involving social and economic legislation, the court applies the rational basis test to determine whether a discriminatory statute is rationally related to a legitimate state interest. Under the rational basis test, Sharon could argue that her exclusion as a non-marital partner from the definition of "heir" under the statute is not rationally related to the state's interest in the descent of estates. While this argument is not guaranteed to succeed, it is the strongest constitutional argument of the choices given.
134
Obstetrical nurses assist pregnant patients and doctors with prenatal care and in the delivery of babies and the care of newborns. A state with a shortage of obstetrical nurses charters a college-level nursing school to train obstetrical nurses in order to remedy the shortage. The college charter (which is created by state statute) restricts it to training female nurses, justified by legislative findings that most women in the state are more comfortable with female obstetrical nurses. The state runs two other nursing colleges in the state, which have obstetrical nursing programs which are open to men. A group of aspiring male nursing students challenge the new college charter under the Fourteenth Amendment.
Is the college charter constitutional?
A Yes, because there has been no state action in this case.
B Yes, because the charter does not violate the Fourteenth Amendment.
C No, because the charter violates the Equal Protection Clause of the Fourteenth Amendment.
D No, because the charter violates the Due Process Clause of the Fourteenth Amendment.
The correct answer is: No, because the charter violates the Equal Protection Clause of the Fourteenth Amendment.
Discussion of correct answer: The Fourteenth Amendment requires that government classifications on the basis of gender must have an "exceedingly persuasive justification," rather than relying on outmoded gender stereotypes. In this case, the classification barring men from attending the new college relies on a mere legislative finding that pregnant women like female nurses better. In the context of modern equal protection gender doctrine, this is an insufficient justification.
135
A state statute provides that people moving into a community may not vote in any elections for local or state officials that are held in that community until they have demonstrated their bona fide intent to become residents of the state by remaining there for six months. In addition, the statute provides that for voting purposes, all such people who have not been residents of the state for at least six months shall retain their residence in the community from which they came. In that state, the age of majority is 18.
Which of the following is the strongest argument in favor of the unconstitutionality of this state statute?
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A A state does not have an interest that is sufficiently compelling to justify the exclusion from voting of an entire class of people.
B There are less restrictive means by which the state could assure that only actual residents of a community vote in its elections.
C Most people moving to a new state are likely to have attained the age of majority under the laws of this state.
D On its face, this statute impermissibly discriminates against interstate commerce.
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The correct answer is: There are less restrictive means by which the state could assure that only actual residents of a community vote in its elections.
Discussion of correct answer: The right to vote is a fundamental right, but jurisdictions may restrict the right to vote so long as the restriction is necessary to advance a compelling government interest and the jurisdiction has chosen the least restrictive means of achieving that interest. Residency, age, and citizenship requirements have been allowed because such restrictions on the right to vote have been deemed the least restrictive means of achieving an important government interest. However, the restriction on the right to vote presented in this question is probably too restrictive. A 50-day residency requirement, which has been upheld by the U.S. Supreme Court, would be less burdensome on the right to vote, yet still eliminate those people who were truly transient occupants of the community.
136
On the last day of its legislative session for 2009, a state legislature enacted the following statute to go into effect on January 1, 2010: “Recycling creates many jobs in our great state, but many state citizens could benefit from increased demand for recycled products. Therefore, all offices in the state must use only 100 percent recycled paper in their copiers and printers.” The governor signed the bill into law. On November 1, 2009, the state Chamber of Commerce filed a complaint in state court challenging the constitutionality of the new law. The state files a motion to dismiss.
Which argument would best support the state’s motion?
(A) The statute is constitutional because the state’s police power includes authority to enact legislation for the health, welfare, and safety of its citizens.
(B) The Chamber of Commerce does not have third-party standing.
(C) The matter is not ripe for adjudication
(D) The complaint asks for an advisory opinion, which state courts are not permitted to render.
(C) The matter is not ripe for adjudication
137
A small local organization is limited to people who can prove that they are 100% Irish and that they are first-, second-, or third-generation Irish-American. The purpose of the group is for members to discuss and implement ways to preserve their Irish heritage and improve working conditions for Irish-American citizens. Many politicians are members and help the group with its legislative and charitable work. The members meet regularly in the conference hall of a local hotel, and new members are admitted twice per year on recommendation of current and past members. As part of the initiation ceremony, each new member takes an oath to uphold the standards and mission of the organization and to refrain from seeking membership for non-Irish-Americans. A state legislator of Italian descent, with a majority of his constituents of Irish descent, believes membership in the Irish organization would allow him to gain insight into the values of his constituents, thereby enabling him to better represent them. He applied but was denied membership. If challenged in court, which of the following is the best constitutional argument the organization can make in defense of its exclusion of the state legislator?
a. There is no state action.
b. The exclusion is permissible under Fourteenth Amendment equal protection principles.
c. Forcing admission of the state legislator would violate existing private contract rights.
d. Forcing admission of the state legislator would constitute a bill of attainder.
a. There is no state action.
138
A teacher was a tenured faculty member of the state university and had served in the history department for 30 years. For a quarter of a century, the teacher has been a member of an organization incorporated in the state with the purpose of promoting educational initiatives and legislation in the state. The organization is not affiliated with the state university system. The teacher joined the organization when she received a flyer in the mail outlining the organization's goals and asking her to join by submitting annual dues. Annual dues paid are determined by the number of years members have served on the faculty or in the administration. The teacher's current dues are $300. The teacher recently published a book in which she theorized that the Holocaust was an invention of the Allies to justify certain political actions taken against Germany in the post-war years. Members of the university faculty have expressed outrage, and the organization, to which many of the members belong, has issued a statement denouncing the book. The teacher has promoted her book throughout the state and country, and has appeared on national television. During one television appearance, she mentioned her membership in a neo-Nazi group that has been responsible for anti-Semitic attacks in the past and accused of promoting lawlessness. Shortly after the television broadcast of her interview, the teacher is informed by the organization that her name has been stricken from the membership rolls. The teacher files suit, claiming violations of her equal protection and free speech rights, and asks the court to order the association to readmit her as a member. What is the most likely outcome of the teacher's suit?
A. The teacher will prevail, because the organization was influenced to act to expel the teacher by members of the university.
B. The teacher will prevail, because the organization does not have a rational basis for excluding from membership such persons as the teacher who are actively involved in organizations that promote lawlessness.
C. The teacher will not prevail, because there is no constitutional violation in the organization's expulsion of the teacher.
D. The teacher will not prevail, because the protections of the First and Fourteenth Amendments do not apply to persons such as the teacher who are actively involved in organizations that promote lawlessness.
C. The teacher will not prevail, because there is no constitutional violation in the organization's expulsion of the teacher.
139
State X has a statute, enacted in 1923, that makes criminal "the utterance in any public place of any blasphemy or sacrilege." There have been only a few recorded prosecutions under the 1923 statute. In a speech delivered on a public sidewalk in state X, a citizen complained about local politicians and referred to her city's mayor as being "a goddamned idiot." Based on that speech, she was arrested and charged with violating the 1923 statute's proscriptions.
Which of the following constitutional defenses to this prosecution under the 1923 statute would be the LEAST likely to succeed?
A This statute is vague and, therefore, violates the Fourteenth Amendment's Due Process Clause.
B This statute is an establishment of religion and, therefore, violates the Fourteenth Amendment's Due Process Clause.
C Application of this statute to the citizen denies her equal protection of the laws in violation of the Fourteenth Amendment.
D Application of this statute to the citizen denies her freedom of speech in violation of the Fourteenth Amendment.
The correct answer is: Application of this statute to the citizen denies her equal protection of the laws in violation of the Fourteenth Amendment.
Discussion of correct answer: By process of elimination, the Fourteenth Amendment's Equal Protection Clause appears to be the citizen's worst defense. The statute would probably be void for vagueness because the words "blasphemy or sacrilege" are not susceptible of a common understanding. A statute is void for vagueness when people of common intelligence must guess at the meaning of the statute. A speech statute containing ambiguous language is especially vulnerable to this challenge because of the potential chilling effect on speech as persons may refrain from engaging in protected speech in fear that their speech may be prohibited by the ambiguous statute. The First Amendment's Establishment Clause as applied to the states by the Fourteenth Amendment's Due Process Clause would also be a strong defense because the statute appears to have a religious purpose--to protect against blasphemy or sacrilege. A statute will be struck down if it lacks a secular purpose, has the primary effect of advancing or inhibiting religion, or involves excessive government entanglement with religion. The citizen would also have a strong argument under the First Amendment's freedom of speech as applied to the states by the Fourteenth Amendment's Due Process Clause, because the regulation is content-based. A regulation that punishes people based upon the content of their speech must be necessary to advance a compelling government interest, unless the content is violent, obscene, defamatory, or commercial speech. Here, there is no compelling government interest served by punishing blasphemy or sacrilege. By process of elimination, this is the best choice. There does not appear to be any discrimination that would call for an equal protection argument. The fact that there have only been a few prosecutions under the statute is insufficient to infer that the citizen was singled out for prosecution in violation of the Fourteenth Amendment's Equal Protection Clause.
140
A small town passed a zoning ordinance that allowed no more than one person, his or her spouse, and their children and parents to live in a single household. One resident of the town, who lived in a single household with her husband, brother, and her brother's children, brought a constitutional challenge against the ordinance.
Which provision of the U.S. Constitution is most likely to support the plaintiff's claim?
A The Thirteenth Amendment.
B The Equal Protection Clause of the Fourteenth Amendment.
C The Privileges and Immunities Clause of the Fourteenth Amendment.
D The Fifth Amendment.
The correct answer is:The Equal Protection Clause of the Fourteenth Amendment.
Discussion of correct answer:Family members have a fundamental right to live together [Moore v. City of East Cleveland, 431 U.S. 494 (1977)]. This is the best answer choice because fundamental rights are protected by the Equal Protection Clause of the Fourteenth Amendment.
141
A state statute provides that the state may only employ U.S. citizens. A resident alien who was prevented from obtaining state employment as a park landscaper solely because of his alien status challenged, in federal court, the statute's constitutionality as applied to his circumstances. Which of the following statements concerning the burden of persuasion applicable to this suit is correct?
A. The alien must demonstrate that there is no rational relationship between the citizenship requirement and any legitimate state interest.
B. The alien must demonstrate that the citizenship requirement is not necessary to advance an important state interest.
C. The state must demonstrate that there is a rational relationship between the citizenship requirement and a legitimate state interest.
D. The state must demonstrate that the citizenship requirement is necessary to advance a compelling state interest.
D. The state must demonstrate that the citizenship requirement is necessary to advance a compelling state interest.
142
A state enacted a statute requiring that the state motto, “Live Free or Die,” be prominently displayed on all state license plates. A resident of the state who considered the motto to be personally offensive, covered the motto portion of her license with a piece of tape. Although she left the license plate in a condition that served its auto identification purpose, she did not display the motto. Shortly thereafter, the resident was arrested and charged with violating a state statute, making it a misdemeanor to deface a license plate. After she was convicted of the charge, the resident filed suit in federal district court challenging the constitutionality of the state statute requiring all license plates to be displayed with the aforesaid motto. How should the federal court rule?
a. Refuse to hear the case under the doctrine of independent state grounds.
b. Adjudge the statute constitutional, if the state can show a rational basis for displaying the motto on the license plate.
c. Adjudge the statute unconstitutional because it denies the petitioner the equal protection of the laws.
d. Adjudge the statute unconstitutional, because under the First and Fourteenth Amendments, the petitioner can refrain from promoting a viewpoint that she does not accept.
d. Adjudge the statute unconstitutional, because under the First and Fourteenth Amendments, the petitioner can refrain from promoting a viewpoint that she does not accept.
143
An employee worked at a shooting range where the schedule required all employees to work Monday through Friday. Each year, the employee, who belongs to a small Jewish sect, took Yom Kippur off if it fell on a weekday. When a new owner took over the shooting range, all employees were placed on new work schedules. The employee was scheduled to work on alternate weekends. All employees were also required to work on holidays, which were the most profitable days for the shooting range. The employee refused to work on Saturdays because of her religious beliefs and chose not to return to work when the new work schedules went into effect. She applied for unemployment benefits. The employee was denied unemployment benefits pursuant to a state statute that prohibits disbursement of benefits to anyone who voluntarily leaves work without cause. Will the employee prevail in a federal court suit challenging the denial of benefits?
a. No, because the state has the power to condition receipt of unemployment benefits to control state costs and fraudulent claims.
b. No, because the Free Exercise Clause only protects members of established religions.
c. Yes, because the burden on the employee's right to freedom of religion outweighs the state's interest in withholding unemployment benefits.
d. Yes, because the state cannot question the sincerity of the employee's faith
c. Yes, because the burden on the employee's right to freedom of religion outweighs the state's interest in withholding unemployment benefits.
π doesn’t succeed under the rational basis
144
A 68-year-old man drove his car into a restaurant while attempting to leave the parking lot. A police investigation showed that the man confused the accelerator for the brake pedal, causing his car to jump the curb and break through a large window. No one was hurt in the accident. However, the man's license was revoked pursuant to a state law requiring all drivers involved in three serious accidents in the previous five years to have their licenses automatically suspended or revoked for the safety of other persons. The law provided for a full administrative hearing to be held after the suspension or revocation if requested by the licensee, and allowed for a licensee that could establish hardship to obtain a restricted driving permit.
The man is a retired doctor who now volunteers by driving to the homes of patients who are otherwise unable to receive medical treatment. The man was now unable to attend to these patients due to the revocation of his license. He brought suit against the state challenging the automatic revocation of his license without his first having an opportunity to present evidence on the accident at the restaurant.
How should the court rule?
A For the man, because a pre-termination hearing is required.
B For the man, because his Fourteenth Amendment rights have been violated.
C Against the man, because he is now retired.
D Against the man, because he received adequate due process.
The correct answer is: Against the man, because he received adequate due process.
Discussion of correct answer: The issue here is one of procedural due process. Ordinarily, a driver's license is considered a property interest, and the revocation of such a license requires a pre-termination hearing [Bell v. Burson, 402 U.S. 535 (1971)]. However, the Supreme Court has held that statutes similar to this are constitutional [Dixon v. Love, 431 U.S. 105 (1977)]. Specifically, the statute in that case was held constitutional where: (1) the statute contained special provisions for hardship cases or holders of commercial licenses; (2) the risk of erroneous deprivation was not great; and (3) the regulation promotes the public interests in administrative efficiency, highway and traffic safety, and the prompt removal of a safety hazard. As such, choice (A) is incorrect. Choice (C) is incorrect, because it is irrelevant to the man's procedural due process claim. His license to practice is not being taken, but rather, his license to drive. Choice (B) is incorrect regardless of whether it is interpreted as a Fourteenth Amendment procedural or substantive due process challenge, because the man will not be entitled to an opportunity to present his case before the suspension of his license.
145
Congress enacted a statute providing for the mandatory administration of national achievement tests at grade levels 4, 8, and 12. Students who did not achieve a minimum score on the tests were to be held back at their current grade level regardless of any other factors, such as grade point averages or written evaluations. Students who did not achieve a minimum score on the tests at grade level 12 would not be permitted to graduate. After her constituents raised concerns about the testing, a congresswoman sued in federal court for a declaratory judgment of the statute's invalidity on federal constitutional grounds. The most likely outcome of the congresswoman's suit is that: (whether judiciable in federal court)
a. the congresswoman will prevail because the federal statute violates the police power of the states.
b. the congresswoman will prevail because the federal statute infringes on interstate commerce.
c. the congresswoman will not prevail because of the mootness doctrine.
d. the congresswoman will not prevail she does not have standing.
d. the congresswoman will not prevail she does not have standing.
146
A recently enacted state law forbids aliens from owning more than 50% of the stock of any publicly traded company incorporated within the state and directs the state Attorney General to bring a criminal action to enforce the statute if a violation is suspected. The plaintiff, a resident alien, purchased 54% of the shares of a publicly traded company incorporated in the state after passage of that law. He sues in federal court to enjoin the state Attorney General from enforcing the statute against him.
Which of the following is the strongest argument for the plaintiff?
A The Fourteenth Amendment Privileges and Immunities Clause bars states from interfering with the right to own stock.
B The statute violates the Fourteenth Amendment Equal Protection Clause.
C The statute adversely affects his right to travel.
D The statute violates the obligation of Contracts Clause.
The correct answer is: The statute violates the Fourteenth Amendment Equal Protection Clause.
Discussion of correct answer: Government regulations that discriminate against aliens are generally subject to strict scrutiny. That is, the government must show that the discrimination is necessary to advance a compelling government interest and no less burdensome measures are available to achieve that interest. Here, the state law discriminates against aliens by forbidding them from owning more than 50% of the stock of any publicly traded corporation. Government actions are nearly always struck down when subject to strict scrutiny. There does not seem to be any compelling interest to justify this restriction, so the plaintiff would probably prevail under an equal protection challenge.
147
A male student in a private school had long hair, which was permitted under the school's rules. However, when the administration at the school changed, the new administrator promulgated a rule that restricted the length of a male student's hair. The parents of the student sued to enjoin the school from enforcing its policy as to their son. The complaint included a prayer for attorney's fees. However, before the case could be heard in court, the student graduated. The school filed a motion to dismiss the case as moot. How should the court rule on the motion to dismiss?
a. Motion granted because the controversy was resolved by the graduation of the student.
b. Motion granted because the graduation of the student removed any real threat of harm.
c. Motion denied because the matter of attorney's fees was still at issue.
d. Motion denied, because the male student had third-party standing to raise the rights of those similarly situated.
a. Motion granted because the controversy was resolved by the graduation of the student.
148
A state held an election in which there were many charges of voter fraud and vote manipulation. Concerned about voting fraud, the state legislature passed a bill providing that any resident of the state who wished to vote in a state election could not vote until he or she had been registered to vote for at least one year. The governor of the state signed the bill into law. A group of new residents sought to enjoin the enforcement of the statute.
Assuming proper standing, how should the court rule?
(A) In favor of the plaintiffs, because under strict scrutiny analysis, the statute is not the least restrictive means available
(B) In favor of the plaintiffs, because even under the rational basis analysis, a one-year registration period is unreasonable.
(C) In favor of the state, because under strict scrutiny analysis, the statute is necessary to further a compelling state interest, namely to prevent voter fraud.
(D) In favor of the state, because under the rational basis analysis, the statute is rationally related to a legitimate state interest, namely to prevent voter fraud.
(A) In favor of the plaintiffs, because under strict scrutiny analysis, the statute is not the least restrictive means available
