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