GOLDEN GATE UNIVERSITY

SCHOOL OF LAW

May 5, 2001


Mike DeVito Spring Semester
Spring Semester
Constitutional Law I
9:30 a.m. - 12:30 p.m.

Directions:

1. Please read these directions and the examination carefully.

2. This is a closed book examination. No books, notes or outlines may be used.

3. The total time of the examination is three hours.

4. The examination consists of three essay questions.

5. Please write legibly; illegible material cannot be graded. Answer all questions in the bluebooks; please write on every other line, on only one side of the page.

6 If additional facts appear to be necessary in answering the questions, make alternative assumptions as to these facts and state your assumptions and why you think they are necessary.
7. Allocate your time sensibly; notice the point value and recommended time for each question.

8. Be sure to write your examination number on all of your bluebooks and on the examination questions.

9. Turn in all questions, scratch paper and bluebooks at the conclusion of the examination.

 

I.

(40 points - Recommended time: 72 minutes)


President Bush wants to place the Federal Government squarely in back of a voucher program. He supports such a program because he believes that providing the student (or the student's parent or parents) with the financial ability to choose their child's school, whether it is public or private, will result in better schools as they compete for students. Any voucher program will provide that the government pays all or part of the school tuition at a private school as well as providing free public education. Voucher programs, traditionally only cover kindergarten through the 12th grade. The choice of which school, public or private, is up to the student's parent or parents.

President Bush asks his Secretary of Education to find out from his legal staff what the Federal Government is constitutionally capable of doing. The Secretary of Education formulates the following questions and asks you, as chief legal counsel, to assess each of these with respect to the Federal Constitution. Each question is separate and is not tied to any of the other questions.

1. Could Congress mandate that States adopt a voucher program?

2. Could Congress fund State voucher programs but only on condition that the funded programs meet Federal guidelines established to provide quality education?

3. Could Congress create Federal schools (rent buildings, hire teachers, set curriculum, etc.) and prohibit any State from treating these students any differently than those attending public or private schools? No student would be required to attend any particular school, the choice of which school to attend (public, private or Federal) would be left up to the child's parent or parents. (This possibility would be instead of a Federally mandated or funded voucher program.)

4. Could Congress establish a Federal Administrative agency to monitor voucher programs to see if these programs were resulting in better education, as measured by standarized test scores? Could Congress provide that this agency be governed by five individuals, appointed by the President, but that these five must selected from the 50 State Superintendents of Education?

Advise the Secretary of Education what, in your opinion, is the most likely answer to these questions.

 

 

I I.

(40 points - Recommended time: 72 minutes)

 

To deal with the chaotic energy situation in California, the State Legislature adopts the following program, which is in addition to a massive State program to build more generating facilities. For the first 10 years of this scheme, until the newly constructed facilities come on line, it is the case that some Californians will have to purchase some of their electricity from out of State.

1. By eminent domain, the State takes title to all facilities, located in the State, which generate electric energy. These include coal-fueled, natural gas-fueled, hydroelectric and nuclear power plants.

2. All electricity generated by these facilities is to be sold to California consumers. If all of the needs of California consumers are met, the surplus may be sold out of State.

3. Californians are not allowed to buy electricity from out-of-State sellers unless the State-generated electricity fails to supply all the needs of California consumers.

4. The price to be charged for all electricity (in-State generated and out-of-State generated, if that becomes a necessity) is to be determined by the California Public Utilities Commission. The price established shall allow a fair and reasonable profit to the seller.

The following plaintiffs challenge the scheme:

a. Pacific Gas and Electric, which is forced to sell its generating plants to the State of California.

b. Tesla Coil, a wealthy individual, who owns her own coal-fueled generating plant in Nevada and who could sell all her electric energy to Californians if the California law did not require all Californians to purchase their electric energy from the State. Tesla could sell her electricity at a price less than that set by the Public Utilities Commission and still make a profit.

c. Outtel, a huge microchip manufacturer, who has to buy out-of-State electricity at a higher price (set by the Public Utilities Commission) than it could purchase in the competitive out-of-State market; for example, from Tesla Coil.

Discuss and decide the likely outcome of the constitutional challenges to each part of this scheme.

 

III.

(20 points - Recommended time: 36 minutes)



The State of Utah passes a law prohibiting lesbians and gays, single or couples, from adopting children. Under existing Utah law, single individuals are not barred from adopting a child.

One argument made by the legislators was that, since homosexual conduct is illegal in Utah, the adopted children of gays or lesbians would learn to disrespect the law. In addition, some legislators put forward the position that these children would most likely become homosexuals.

Joe Foster is a gay male who is, in every other way, qualified to adopt a child. He applies to adopt a child and is told that his homosexuality is the sole reason why he is being turned down as an adoptive parent.

He sues, in the appropriate court, seeking a ruling that the Utah law violates his Constitutional right to Due Process of Law. He introduces several reputable studies establishing that the sexual orientation of children is not correlated with that of their parent or parents.

Discuss and decide the likely outcome of Joe's suit.