Professor Harpaz
Constitutional Law - Section 3
Final Examination
April 30, 2009
Question I
(Suggested time: 60 minutes) (48 out of 144 total exam points)
In 2008, the City of Springdale passed an ordinance
that regulates tow trucks. The Springdale City Council held hearings
before the ordinance was enacted. The presidents of several local
towing businesses testified that a growing number of tow trucks, many
from outside Springdale, were monitoring Springdale police radio
transmissions and “racing” each other to be the first to reach the
scene of a car accident. A month before the ordinance was enacted, two
tow trucks operated by towing businesses located outside of Springdale
collided and killed a driver whose car had been in an accident in
Springdale and needed to be towed. Springdale is located in the western
part of Massachusetts near the border that separates Massachusetts from
Connecticut.
The ordinance makes it unlawful to “engage in towing
in the City of Springdale without having first obtained a license from
the Springdale Tow Truck Licensing Authority.” The ordinance defines
“towing” to include not only the towing of a vehicle, but any “driving
or other operation of a tow truck, or the offering to transport a
vehicle by means of a tow truck.” Thus, the ordinance requires that all
tow trucks within the City limits must be licensed by the City. This is
true regardless of whether the truck has a vehicle in tow and
regardless of whether the truck is actively soliciting business in the
City or simply passing through, such as towing a car from one location
outside the City to another location outside the City.
In order to obtain a tow truck license from the
Licensing Authority, a towing business, wherever located, must pay
annual fees of $ 600 per truck and $ 20 per driver. As part of the
licensing process, tow trucks must undergo a vehicle inspection and
drivers must submit to a criminal record check. Further, applicants
must furnish proof of adequate liability insurance. Because the
licensing process often takes up to six months, single-tow emergency
licenses can be issued by any police officer after a brief vehicle
inspection for a fee of $50. No towing business can receive more than
four single-tow emergency licenses within any one calendar year.
Before enacting the ordinance, the Springdale City
Council consulted with the City Attorney to see if a local towing
ordinance would violate federal law. The City Attorney informed the
City Council that a provision of the Interstate Commerce Act prevents
states and local governments from enacting laws “related to the price,
route, or service of any motor carrier with respect to the
transportation of property.” While this federal law applies to towing,
a form of transportation of property, it contains an exception which
provides that the provision “shall not restrict the regulatory
authority of a State with respect to the safety of motor vehicles.” The
United States Supreme Court has interpreted this exception to only
apply to local regulations “genuinely responsive to safety concerns.”
The City Attorney offered his opinion that this exception might apply
to the Springdale towing ordinance. After hearing this legal advice,
the City Counsel went ahead and enacted the ordinance.
Tony Tower (TT) resides in Connecticut. TT operates
a towing business in Connecticut, but is sometimes called to tow cars
located in Springdale and on occasion transports a vehicle through
Springdale on his way to locations in other states. He has filed a
lawsuit challenging the constitutionality of the Springdale towing
ordinance.
You are a law clerk for the judge assigned to the
case. The judge has asked you to write an analysis of the
constitutional arguments that Tony Tower can make in challenging the
constitutionality of the Springdale towing ordinance as well as the
arguments that the City of Springdale can make in defense of the
constitutionality of the ordinance.
Question II
(Suggested time: 75 minutes) (60 out of 144 total exam points)
After reviewing a series of studies undertaken by
the Department of Education (DOE), academic literature, and expert
testimony before congressional committees, Congress is considering
enacting the Single Sex Educational Opportunity Act (SSEOA) of 2009.
Under this federal law, public and private elementary and middle
schools (grades K-8) in all 50 states would be required by the year
2012 to offer students in underperforming, large enrollment schools a
single sex alternative. Such schools would be required to provide equal
single sex educational opportunities for males and females and would
not be permitted to displace classes where males and females are
enrolled in the same class. Under the statute, “large enrollment
schools” are defined by grade rather than by classifying the school in
its entirety. Therefore, schools offering K-8 education are only
required to offer a single sex alternative in any grade in which they
have at least 6 classes in a grade level. In that circumstance, there
would be 4 coed classes and one class for males and one for females.
The statute gives schools some discretion in how to select students for
enrollment in single sex classes if they are oversubscribed, but it
requires that all such enrollments be voluntary and with the express
permission of the parents.
SSEOA was co-sponsored by several members of the
House and Senate after a number of studies demonstrated that both boys
and girls, particularly those who fail to perform at or above grade
level on standardized tests, show a marked increase in their academic
performance if they are placed in single sex classes. This improvement
is most dramatic in grades K-8 which is why SSEOA only applies to those
grades. While the improvement is more dramatic for boys, there is also
some improvement for girls as well. In light of declining high school
graduation rates and the need for a skilled workforce, members of
Congress concluded that a single sex alternative in the early grades
should be part of the effort to improve the American education system.
SSEOA mandates single sex classes be offered only in
underperforming schools. Underperforming schools are defined as schools
in which average standardized test scores are well below the national
average for each grade level. In addition to the mandatory provisions
of SSEOA, the statute also provides educational improvement grants to
schools with average performance on standardized tests on the condition
that they offer single sex alternatives for both male and female
students.
While there is overwhelming support for SSEOA in
Congress, some issues remain to be resolved. You are a legislative aide
to a member of Congress who is involved in drafting the final version
of the statute. You have been asked to answer a series of specific
legal questions about SSEOA. In response, please include in your answer
an analysis of the arguments on both sides of the issues raised in
these questions. However, you do not need to argue both sides if there
is only one reasonable answer to the question.
1. Could SSEOA be successfully challenged as an unconstitutional
exercise of the Commerce Power?
2. Could the educational improvement grants awarded to public
schools with average performance on standardized tests on the condition
that they offer single sex alternatives for both male and female
students be successfully challenged as a violation of the Spending
Power?
3. Could SSEOA be successfully challenged as a violation of the
equal protection component of the Fifth Amendment Due Process Clause
because it discriminates on the basis of gender by mandating single sex
classes?
4. If SSEOA only applied to public schools could it be
successfully challenged on the ground that it violates the Tenth
Amendment?
5. Does the application of SSEOA to both public and private
schools cure any Tenth Amendment defect that might otherwise exist if
it applied only to public schools?
6. A proposed amendment to SSEOA attempts to deal with the issue
of how schools can allocate seats in single sex classes if more parents
seek to enroll their children in those classes than there are seats in
the classes. It would allow schools to select students for enrollment
in oversubscribed single sex classes both by lottery and by reverse
academic average with the weakest students receiving the highest
priority. It would also allow a combination of these two methods. Are
there any constitutional problems with these two methods of allocating
seats in single sex classes?
7. Department of Education studies demonstrate that
underperforming African-American and Latino students receive the
greatest educational benefit from single sex education.
African-American males improve their educational performance three
times more than white males if placed in a single sex class.
African-American females improve their performance two times more than
white females. The statistics for Latino children also show more
improvement than their white counterparts, but not to the same extent.
To maximize the effectiveness of single sex education, a proposed
amendment to SSEOA would allow schools to reserve up to 25% of the
seats in single sex classes for African-American and Latino students
who are below grade level in their performance on standardized tests.
If adopted, would this proposed amendment violate the equal protection
component of the Fifth Amendment Due Process Clause?
Question III
(Suggested time: 45 minutes) (36 out of 144 total exam points)
The State of Stone is concerned that there has been
a substantial decline in its population. After investigation, the
state has learned that this decline is not due to either an increase in
the number of people moving out of state or a decrease in migration
into the state. Moreover, it has occurred despite an increase in the
marriage rate and a decrease in the rate of abortions. Instead, the
decline is due to the fact that fewer married couples are having
children. Upon further investigation, the State has learned that one
significant contributing factor to the decline is a dramatic increase
in the number of men who are undergoing vasectomies.
In order to reverse the population decline, the
state is attempting to discourage men from having vasectomies while in
their peak years of fertility, defined as under 50. To help with this
effort, the legislature recently passed Law 911 which imposes several
restrictions on obtaining a vasectomy. First, under the Informed
Consent provision of the law, a man is required to wait 7 days between
a decision to obtain a vasectomy and actually undergoing the procedure
unless a delay in scheduling the procedure would endanger the life of
the man. During that 7 day time period: (1) a man’s physician must
inform him of the medical risks of the procedure including infection,
hematomas, and sperm granulomas, and (2) he must undergo 3 hours of
counseling to make sure that he understands the negative consequences
of the procedure, including the fact that it is not always reversible.
Second, under the Spousal Notification provision of the law, married
men are required to notify their spouse prior to undergoing the
procedure.
Max Masters (MM) is a 40 year old married man who
resides in the State of Stone and is planning to undergo a vasectomy at
a hospital located within the state. He has filed a lawsuit challenging
both the Informed Consent and Spousal Notification provisions of Law
911 on the ground that they violate his rights under the Fourteenth
Amendment Due Process Clause.
You are a law clerk to the judge assigned to the
case. The judge has asked you to write an analysis of the due process
arguments that MM can make in challenging the constitutionality of Law
911 under the Due Process Clause as well as the arguments that the
State of Stone can make in defending the constitutionality of the law
under the Due Process Clause.
END OF EXAMINATION