CONSTITUTIONAL LAW III

Final Examination

December 1999

9:00 a.m. to 5:00 p.m.

Autumn Quarter, 1999

Prof. Obama
 Instructions

1. This is an open book exam. You may use any materials or notes used in our
class. You may not refer to cases, articles, etc. that were not used in class.

2. You will have eight hours, inclusive of travel time, to complete the exam. The
exam is designed, however, to be completed in three to four hours. Feel free
to use the extra hours as you wish.

3. The exam consists of three Parts. In grading the exam, I will treat Parts One
and Two as equal in weight. Part Three will count for only half as much as
the other two; you should therefore allocate your time accordingly. Each part
contains multiple questions; you should make sure that you answer all the
questions contained in each part, although the questions within each part are
obviously interrelated and each part will be graded as a whole.

4. I would greatly prefer that your answer be typed or word-processed.

Assuming you type, you must double-space, use a It-point font, and
provide for at least one inch margins all the way around the page. This
works out to roughly 435 words per page (five characters per word).
Your answer must be no more than 12 pages (or roughly 5,200 words); I
will stop reading after 12 pages.

5. If you really truly cannot type, or lack access to a word processor, then you
may use a bluebook. Please write on only one side of each bluebook page, put
your exam number on each bluebook, and remember to skip tines, The rough
5,200 word limit still applies.

6, Read each question carefully and think before you write. Please do not feel
obliged to make use of the 12 page maximum in formulating your
answers. Precision and imagination, rather than volume, is what counts.

Good luck, and have a fine holiday.

 Part One (One hour)

After completing a year-long appellate court clerkship and a well-deserved month-

long vacation in Fiji, you have finally settled into your work as a litigation associate at a
well-regarded plaintiffs firm in the state of Nirvana. Most of the work involves medical
malpractice and product liability lawsuits, but one day your supervising partner -- who
knows your interest in civil rights work -- asks you to sit in on a meeting with a group of
clients whom the firm is representing on an Equal Protection Clause claim.

In the meeting, you learn that the ten clients - all African-American women of
United States citizenship between the ages of twenty and forty - have a common tale to
tell. At some point in the past year, each of them traveled overseas for business or
pleasure. Upon the returning to the United States and attempting to pass through U.S.
Customs, they were asked by customs agents to step out of the normal processing line and
led a room, whereupon the agents pored over their luggage and personal effects in search
of illegal drugs. When no drugs were found in their luggage or personal belongings, each
of the women was then asked by the agents to submit to a strip search. All of the women
objected at first, but uncertain of their rights and anxious to get through customs and into
the arms of friends and family, they all ultimately acceded to the strip searches, which
were performed by female customs agents. Again, in each case no drugs were found.
Only after undergoing this humiliating ordeal were the women permitted to reenter the
United States.

Your supervising partner informs you that these ten women are part of a much
larger class of African-American women who have apparently been forced to submit to
strip searches by U.S. Customs agents over the past five years, and that initial discovery
on the case has yielded the following facts. First, only a very small percentage of U.S.
citizens entering the country during this period - black or white - were subjected to strip
searches by customs agents; indeed, for the population as a whole, the number subjected
to a strip search is less than one in one thousand (or 0.1 percent). Moreover, the
percentage of persons subjected to strip searches who are actually found to be carrying
drugs on their person is extremely low for all demographic groups: the "success rate” of
these searches is less than 3 percent as a whole.

Nevertheless, it appears that there is a significant statistical disparity between the

percentage of blacks and the percentage of whites that are subjected to such searches.
Specifically, it turns out that black women constitute the demographic group most
frequently targeted by U.S. customs for strip searches: they are eight times more likely to
be subjected to strip searches than are white men, are six times more likely to be
subjected to strip searches than are white women, and are twice as likely to be subjected
to strip searches than black men. This is despite the fact that the “success rate” for
searches of black women has been only marginally higher than the “success rate” for
searches of white women (1.8 percent compared to 1.6 percent), and has actually been
slightly lower than the “success rate” for searches of both black and white men. In
addition, there appears to be no identifiable difference or pattern with respect to where

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those persons that are searched were arriving from; in other words, it does not appear that
the black women were more likely to be arriving from foreign locales known for
originating drug traffic.

Third, it appears that although customs agents are afforded some discretion in
determining which disembarking passengers seeking entry into the United States will be
subjected to extensive searches, agents are guided in making these determinations by a
U.S. Customs manual and policy that purports to “profile” those persons most likely to be
drug couriers. U.S. Customs has thus far resisted the disclosure of the actual “profiles”
agents use, maintaining that the success of this “profiling” system depends in part on its
secrecy (if drug couriers know what customs agents are looking for, the argument goes,
then they will modify their “profile” to escape detection). However, your law firm has
been able to obtain documents showing that the “profiles” used by U.S. Customs agents
are generated by compiling law enforcement statistics on persons arrested and convicted
of carrying drugs into the United States during the previous ten years, and then funneling
the characteristics of these persons (race, gender, age, manner of dress, last point of
departure, etc.) into a computer model. The U.S. Customs “profiles” are created with the
help of Intrepid Inc., a private firm specializing in working up statistical “profiles” not
only for law enforcement agencies, but also for private sector companies interested in
marketing their products to particular population segments or in screening out potentially
troublesome or unproductive job applicants.

So far, Intrepid has refused to divulge the modeling program that it used in
working up the drug courier profiles for U.S. Customs, claiming that their software is
proprietary. Your law firm has obtained from U.S. Customs, however, the raw statistical
data that was fed into the computer program. Preliminary analysis of the data by your
experts indicates that black women were twice as likely as white women to have been
caught smuggling drugs into the country during the ten-year period prior to the adoption
of the “profiling” program; however, the raw data does not disclose the degree to which
this resulted from a higher rate of black women being searched. The data also shows that
while the percentage of all women apprehended for drug smuggling was lower than it was
for men, women were somewhat more likely to have been caught carrying drugs on their
person as opposed to in their luggage or personal effects.

Beyond the statistics and information outlined above, there is no hard proof that
the US. Customs service is actively discriminating against African-Americans. The
agency maintains that its system of “profiling” is solely designed to curb the flow of
illegal drugs into the country, and that its agents are trained and monitored to ensure that
they carry out their duties in a fair and professional manner. Discovery has yielded one
additional interesting piece of information, however: a memo, written early two years ago
by a high ranking official within the agency to the head of the U.S. Customs Service, in
which the official points out the racial and gender disparities in strip searches that have
resulted from the profiling program and suggests that a thorough review of customs
agency procedures be carried out promptly so as to avoid possible “political or legal
fallout.” The memo also notes that although the agency has never been accused of

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discrimination in its hiring of customs agents, the fact that only 6 percent of all customs
agents are black, and only 18 percent are women, make the disparities in strip searches
“all the more troubling.” The documents indicate that no action was ever taken on this
memo.

After the meeting with your clients is over, your supervising partner asks you to
work up a memo on the case. Specifically, she asks that you answer the following two
questions:

A. First, assuming that no “smoking gun” ever emerges indicating blatant

discrimination on the part of either U.S. Customs or its agents in the manner
in which it selects entrants into the United States for strip searches, please
outline both the strengths and weaknesses of our clients’ claims that they have
suffered both race and gender discrimination in violation of the Equal
Protection Clause. In answering this question, recall that the Equal Protection
Clause applies to the federal government through “reverse incorporation” of
its principles into the Fifth Amendment; in other words, assume for this
question that the Equal. Protection doctrine applicable to the federal
government mirrors the doctrine applicable to state governments. Also, please
do not concern yourself with search and seizure doctrine under the Fourth
Amendment or issues of federal sovereign immunity law: just focus on the
problems involved in making an Equal Protection claim.

B. Second, assume for a moment that we are ultimately successful in our lawsuit,
and a federal court rules that U.S. Customs has engaged in racial and gender
discrimination with respect to the manner in which it selects persons for strip
searches. Assume further that part of the court’s ruling is based on a finding
that customs agents tend to engage in racial. and gender stereotyping in
deciding which persons will be more extensively searched. To what extent
could such a ruling serve as the basis for establishing an affirmative action
program within the agency that would result in a higher percentage of black
and female customs agents? In answering this question, please include some
ideas as to how such an affirmative action could best be structured to survive
constitutional attack.

Part Two (One Hour)

For the past decade, State Senator Bob Thomas, a senior Democratic member of
the Nirvana General Assembly, has been one of the leaders of the state’s anti-abortion
movement. A devout Catholic who also opposes the death penalty and champions the
interests of children and the poor, Senator Thomas has introduced and passed a variety of
bills designed to limit abortion in the state, including informed consent requirements,
waiting period requirements, parental consent requirements, and a prohibition on the use
of state funds for funding abortion services. Most recently, he passed legislation, signed
by the Governor, that prohibits doctors from carrying out so-called “partial birth”

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abortions in the State of Nirvana; implementation of that law has thus far been stayed
pending review of its constitutionality by the United States Supreme Court.

Since visiting a neo-natal unit in an urban hospital last year, and observing first
hand the devastating and long-term effects of drug use by pregnant women, Senator
Thomas has decided to broaden his concern beyond abortion. This past session, Senator
Thomas successfully passed through the General Assembly what he dubbed the “Head
Start for Life” bill. The legislation’s preamble states that the purpose of the bill is to
ensure that “all children in the State of Nirvana get the best possible start in life” in light
of the growing body of scientific evidence regarding the importance of prenatal care, and
further, that the bill will, “protect the public fisc from the enormous expenditures”
devoted to the costs associated with premature births, low birth weight babies,
dysfunctional behavior by children, and so on.

The provisions of the bill are relatively simple. The first, and perhaps least
controversial, aspect of the bill, enhances criminal penalties for those persons who
knowingly sell illegal drugs to pregnant women. The second provision modifies
mandatory sentencing laws so as to require judges to incarcerate in a specially equipped
facility any pregnant woman arrested for illegal drug use for the duration of her
pregnancy. (Prior to the passage of this provision, pregnant women who were caught
using drugs were treated like any other offender, so that if, for instance, they were first
time offenders, there was a strong likelihood that through plea bargaining or the exercise
of judicial discretion, they would be given probation subject to enrollment in a drug
treatment center,)

It is the third provision, however, that has raised the most hackles. This provision
prohibits a) the purchase or use of cigarettes or alcohol by pregnant women; b) the
knowing sale of cigarettes or alcohol to a pregnant woman by any retail establishment or
restaurant; and c) the purchase of cigarettes or alcohol by a third party with the intent of
providing these substances to a pregnant woman. Violation of any part of the provision
will result in a hefty fine.

As one might imagine, the “Head Start for Life” bill, which is the first of its kind
in the nation, has set off a firestorm of controversy. The fact that Senator Thomas was
able to push it through the General Assembly testifies to his legislative skills and political
clout, given the vigorous opposition of not only the National Organization for Women but
also the Retail Merchants Association, the tobacco lobby, and the liquor lobby. It didn’t
hurt that he had the support of the American Cancer Society, the Coalition for a Smoke-
Free Society, and several pediatric organizations.

The bill has now landed on the Governor’s desk, and although the Governor
considers himself pro-life and has supported Senator Thomas’ bills in the past, he thinks
that the Senator may have gone too far this time, and would like to veto the bill. On the
other band, the Governor does not want to offend such a critical political ally right before
election time, and is looking for political cover. He calls you, his crack constitutional law

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expert, into his office, and asks you to write a memo that evaluates whether the “Head
Start for Life” bill violates either the Equal Protection Clause or the “Substantive” Due
Process Clause of the Fourteenth Amendment.

In writing the memo, assume that the following are true; a) that the use by a
pregnant woman of any of the proscribed illegal drugs mentioned in the legislation does
in fact have a severe and lasting impact on the development of a fetus, and impact that
extends beyond birth; b) that although the consumption by a pregnant woman of
cigarettes and alcohol may be less severe than, say, crack cocaine, the adverse affects on
the fetus are both demonstrable and significant, and may likewise extend beyond birth.
In addition, please focus your discussion solely on Fourteenth Amendment issues raised
by the bill, and not on any criminal law issues (i.e. the possible difficulty in proving
intent) that might arise were the Governor to sign the bill.

Part Three (Half an Hour)

In discussing the on-going controversy with respect to the Supreme Court’s

“substantive due process” jurisprudence, Professor Cass Sunstein makes the following
observation:

The received wisdom is that Lochner was wrong because it involved

“judicial activism.“. . .
[But it is possible] to understand Lochner from a different point of view.
For the Lochner Court, neutrality, understood in a particular way, was a
constitutional requirement. The key concepts here are threefold: governmental
inaction, the existing distribution of wealth and entitlements, and the baseline set
by the common law. Governmental intervention was constitutionally
troublesome, whereas inaction was not; and both neutrality and inaction were
defined as respect for the behavior of private actors pursuant to the common law,
in light of the existing distribution of wealth and entitlements.. . .
[If] Lochner is understood in these terms, its heirs are not [cases like] Roe
v. Wade, but instead such decisions as Washington v. Davis,. . .Regents of
California v. Bakke, and various cases immunizing those who are thought not to
be “state actors” from constitutional constraints.

Is Professor Sunstein correct in his description of the Lochner legacy’? And if so,
what conclusions would you draw with respect to whether or not the Supreme Court’s
approach to “substantive due process” since Lochner properly balances issues of
individual liberty, majority will, and judicial authority? In briefly answering this
question, do not be afraid to stake out a personal position; do try, where appropriate, to
bolster that position with examples of particular cases that we covered during the course.

END OF EXAMINATION

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