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