Professor Harpaz
December 20, 2007
Constitutional Law - Section 4
Final Examination

Question I
(Suggested time: 60 minutes) (50 out of 150 total exam points)

    The Town of Eastfield has been a premier summer beach resort for many years. The Town's summertime population has experienced substantial growth every year since 1980.  Currently the summertime population is five times the year-round population due to tourism and the presence of seasonal homes. Because road travel to Eastfield occurs mainly by way of the Shoreline Highway, traffic volume on the Highway during the summer is currently at or near capacity. Moreover, traffic on other Town roads during the summer months is rising rapidly.

    In addition to transportation via the Shoreline Highway and other Town roads, Eastfield is also accessible by low-speed passenger ferries that dock at the Town Ferry Terminal, which is owned and operated by the Town of Eastfield.  The ferries are operated by four private companies that have licenses from the Town granting them permission to dock at the Ferry Terminal.  Three of the four companies are local and the fourth is an out-of-state company whose president is an Eastfield native.  All four companies have been operating their ferry service for over 10 years. The passenger ferries cross Plymouth Bay to travel between Eastfield and several out-of-state locations.

    Last year, Fulton Ferry (FF), an out-of-state corporation, sought permission to begin interstate ferry services to Eastfield’s Town Ferry Terminal.  FF proposed operating a high-speed passenger ferry that would cut the time of the ferry ride in half as compared to the low-speed ferries currently in operation.  It also sought permission to start a vehicle ferry service that would carry cars, buses, trucks, and motor homes, in addition to passengers and freight.     

    The Town Council of Eastfield (“Town Council”) reacted to FF’s request by immediately imposing a moratorium on new ferry services and commissioning a town-wide transportation study.  The transportation study concluded that “summertime road traffic in Eastfield has become so heavy as to undermine the Town’s rural atmosphere, create very inconvenient and even dangerous driving conditions on the Town’s roads, and generally diminish the quality of life heretofore enjoyed by residents and visitors alike.”  In addition, the study concluded that “potential traffic increases on the roads providing access to the Ferry Terminal will have a negative impact on the environment by increases in vehicle pollutants and noise.”  The study also found that the environmental impact of a high-speed ferry service would be negative based on studies showing that high-speed ferries create larger waves that pose safety concerns for boaters and swimmers and have high fuel consumption and air emissions.  The study recommended that the Town Council not permit any new categories of ferry service.

    After considering the transportation study, the Town Council adopted a Ferry Law, which became effective last month.  The Ferry Law provides, in relevant part:
 
No ferry which has the capability of traveling at a speed in excess of twenty 20 knots, nor any vehicle ferry of any description, shall be allowed to dock at or make use of the Town Ferry Terminal, except in case of emergency.

The Ferry Law precludes Fulton Ferry from providing both a high-speed passenger ferry service and a vehicle ferry service to the Town of Eastfield.

    Fulton Ferry has filed suit challenging the constitutionality of the Ferry Law.  You are a law clerk for the judge assigned to the case.  The judge has asked you to write an analysis detailing the constitutional arguments that FF can make in challenging the Ferry Law as well as the arguments that the Town of Eastfield can make in defending the law against FF’s constitutional challenge.


Question II
(Suggested time: 60 minutes) (50 out of 150 total exam points)

    Alex Aberson (AA) was born and raised as a male in the State of Southland, but had a strong identification as a female and experienced considerable distress because of his male gender.  At the age of 22, AA was diagnosed with Gender Identity Disorder (“GID”), which the American Psychiatric Association characterizes as a disjunction between an individual’s sexual organs and sexual identity.  After extensive psychological, psychiatric and endocrinological evaluation and hormone therapy, sex reassignment surgery was performed successfully on AA and AA became anatomically, as well as psychologically, a female.  

    After the surgery, AA sought to complete her transformation to her female identity by seeking to amend her birth certificate to list her sex as female rather than male.  The majority of states allow such a change after a transgendered person undergoes gender reassignment surgery.  However, the Director of the Southland Bureau of Vital Records (“the Director”) refused AA’s request citing relevant provisions of the Southland Vital Records Act (“the Act”). Under that law, birth certificates can only be altered in limited circumstances:

Birth certificates may not be altered after issuance except as follows:

(1) information on the certificate may be altered for up to 10 years after the original certificate was filed if it was erroneous at the time it was originally entered as the result of unintentional human error or fraud; or

(2) the name on the certificate may be altered if a name change has been approved by a court of law; or

(3) the listing on the certificate for the birth father may be altered if a legally binding declaration of paternity has been made by someone other than the listed birth father.

    In speaking with the Director about the Act, the Director informed AA that the Bureau did not usually change a person’s birth certificate if the certificate was an accurate statement of facts existing at the time of birth.  As long as the certificate correctly lists a person’s gender at the time of birth, it cannot be altered.  In addition, the Director pointed out that while transsexuals can undergo surgery and hormone treatments, including genital reconstruction surgery, that can alter their outward appearance, nothing can alter a person’s sex chromosomes that determine a person’s genetic sex.  

    The Director conceded that the state would change a person’s name as it appears on their birth certificate if a person legally changed their name so that the certificate reflected the person’s current legal name.  The Director told AA this was to make sure that a search of the state’s vital records would be able to correctly associate a person with the birth certificate that had been filed at the time of the person’s birth for identification purposes.  The certificate also could be changed to reflect legally binding declarations of paternity so that inheritance rights could be more easily administered.  Since none of these justifications apply to the designation of gender on a birth certificate, AA was told that the Bureau was unwilling to change her gender as it appears on her birth certificate from male to female.

    AA is not interested in changing her name since her birth name of “Alex” is gender neutral.  In addition, the Director made it clear that AA would not be able to change the male gender listed on her birth certificate even if she were to change her name to a traditionally female name.  

    AA is very anxious to alter the gender designation on her birth certificate to complete her transformation from male to female.  A corrected birth certificate will allow her to be considered female by the legal system and the world in general.  AA has filed a lawsuit challenging the State of Southland’s refusal to alter her gender on her birth certificate based on the Due Process and Equal Protection Clauses of the Fourteenth Amendment.

    You are a law clerk to the judge assigned to the case.  The judge has asked you to write an analysis detailing the due process and equal protection arguments that Alex Aberson can make in challenging the constitutionality of the State of Southland’s refusal to change the designation of her gender on her birth certificate as well as the State of Southland’s arguments defending its decision not to alter AA’s birth certificate against these constitutional challenges.


Question III
(Suggested time: 60 minutes) (50 out of 150 total exam points)

    The United States government has become concerned that increasing numbers of children are attending school without first obtaining a series of vaccinations recommended by public health authorities.  The increase in the number of unvaccinated schoolchildren creates a risk that certain diseases, such as polio, that are now eradicated in the United States will reappear.  While all fifty states have vaccination requirements, many states liberally grant exemptions from these laws as well as fail to enforce them even against parents who have not sought an exemption. A variety of reasons are offered by parents for their reluctance to allow their children to receive the traditional childhood vaccines including fear that the vaccines will cause health problems and a desire not to subject their children to the pain of multiple immunizations.

    Before addressing the issue, Congress held a series of hearings.  Public health officials testified about the serious health risks created by significant numbers of unvaccinated children in the population.  These officials also predicted what the severe physical and psychological consequences of new outbreaks of eradicated diseases such as polio and diphtheria would be in the United States. Economists testified about the economic consequences of such an outbreak in terms of the burdens on the health care system, the education system, and the workplace.  Legal experts testified about the failure of states to enforce existing state laws requiring vaccinations.

    After the conclusion of the hearings, Congress enacted the Schoolchildren Immunization Protection Act of 2006 (SIPA).  Under the Act, children are required to be vaccinated against a series of diseases including diphtheria, tetanus, pertussis, measles, mumps, rubella, poliomyelitis, Haemophilus influenzae type b, and hepatitis B prior to enrollment in a public or private school. Under the federal program, free vaccines are provided to families who cannot afford the costs of the required vaccines.  Children who receive the required vaccines are provided with a Federal Vaccination Compliance Report.  This Report is to be made available to school authorities as proof of compliance with SIPA.

    In order to enforce the provisions of SIPA, Congress requires public and private schools to refuse to enroll students who cannot provide a Federal Vaccination Compliance Report.  Schools that fail to comply with SIPA are subject to civil fines of up to $20,000 per school year.  SIPA also requires states to file reports listing the number of students who have failed to comply with SIPA so that the federal government can track compliance levels.

    Recently, a lawsuit was filed in federal court by a group of plaintiffs to challenge the constitutionality of SIPA.  The suit was filed by a broad coalition that includes boards of education and school districts that are required to enforce SIPA in the public schools that they operate, private schools that are also required to comply with SIPA’s federal regulatory program, states that object to the reporting requirements of the law, and parents who object to the requirement that they vaccinate their children on the ground that they should be allowed to make decisions about their children’s health free of government intrusion.  The plaintiffs are seeking to convince the court that SIPA should be declared unconstitutional in its entirety.   

    While the lawsuit challenges the constitutionality of SIPA’s vaccination requirement, it does not challenge the narrow exemption made available under Section 10 of SIPA.  Section 10 of SIPA contains an exemption from the vaccination requirement for (1) children with certain medical conditions that would worsen if they were vaccinated and (2) parents and guardians whose sincere religious beliefs do not permit immunizations.  The plaintiffs are hoping that they will succeed in their effort to convince the court that SIPA is unconstitutional in its entirety.  Only if they fail in this effort will they consider filing a separate lawsuit to challenge various aspects of the Section 10 exemption both on its face and as applied

    You are a law clerk for the judge assigned to the case.  The judge asks you to write an analysis of the constitutional arguments that are available to the various plaintiffs that are challenging SIPA as well as the arguments available to the federal government in defending SIPA against these constitutional attacks.  The judge tells you to only consider the constitutional claims raised by the plaintiffs in the current lawsuit and not to discuss possible constitutional challenges to Section 10.

END OF EXAMINATION