Obama's Constitutional Law Final Exam When He Taught at Harvard; The Big Issues: Lesbians and Government Jobs for African Americans

CONSTITUTIONAL LAW III
Final Examination
December 12, 1996
9:00 a.m. to 3:00 p.m.
Autumn Quarter, 1996
Barack 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 six hours to complete the exam. The exam is designed,
however, to be completed in approximately three hours. Feel free to use the
extra three hours as you wish (anxiously flipping through the casebook for that
one last citation, or heading over to the gym for a good workout - your
choice).
3. The exam consists of two Parts. In grading the exam, I will treat each part as
roughly equal in weight. Part Two contains two separately numbered
questions: I will accord roughly the same weight to each question.
4. I would greatly prefer that your answer be typed (word-processed).
Assuming you type, you must double-space, use a If-point font, and
provide for at least one inch margins all the way around the page. Your
answer must be no more than 15 pages; I will stop reading after 15 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 the bluebook, and
remember to skip lines.
6. Read each question carefully and think before you write. Please do not feel
obliged to make use of the 15 page maximum in formulating your
answers. The exam can be answered magnificently in half that number.
Good luck, and have a good holiday.


Constitutional Law III - Autumn 1996 - Final Examination - InstructionsPart One (one and a half hours)

Helen, a forty-year old registered nurse, comes into your office seeking
your best legal advice regarding possible constitutional claims against the State of
Wazoo. Wazoo is a state in the United States. Helen informs you that she is a
lesbian, and that she has been involved in a monogamous relationship with - and
has shared a household with -- her partner, Rachel, for the past seven years. The
two of them moved to the State of Wazoo just six months ago, in part so they
could be closer to Rachel’s ailing mother.

Since their arrival in Wazoo, Helen has worked at Wazoo State Hospital, a
state owned and operated facility. Although the subject of her sexual orientation
did not come up when she was interviewing for the job, Helen has made no
attempt to hide her relationship with Rachel from her co-workers at the Hospital,
and most them, including her supervisor, are aware that she is a lesbian. Helen
maintains that she has suffered no harassment or discrimination on the job, and
has received excellent performance reviews.

For some time now, Helen and Rachel have wanted to start a family. Rachel
cannot bear children for various medical reasons. Before moving to Wazoo, Helen
attempted to become pregnant by way of artificial insemination, using sperm donated by
Rachel’s brother, Jim. These attempts were unsuccessful, and Helen’s doctor
subsequently advised her that due to blockage in her fallopian tubes, Helen’s best - and
perhaps only -- hope of becoming pregnant would be through the process of in vitro
fertilization (the procedure would involve removing Helen’s eggs from the uterus,
fertilizing them with Jim’s sperm in a laboratory, and then transferring them back into
Helen’s uterus). Moreover, Helen’s doctor informed her that because she is nearing the
end of her childbearing years, the likelihood of in vitro fertilization resulting in a
successful pregnancy would drastically diminish within the next two to three years.
Helen and Rachel are therefore anxious to move forward with in vitro fertilization; they see it as their last chance at having a child of their own. Because Rachel’s work provides no health benefits, and given the expense of in vitro fertilization, Helen and Rachel will not be able to afford the procedure unless it is covered under the health care plan Helen receives as a state employee.

Unfortunately, when Helen went in to talk to her benefits officer at the Hospital,
she learned that the Wazoo state legislature passed a law last year, titled the “Preservation
of Family Values Act” (PFVA), that, inter alia, prohibits any doctor or health care
professional, whether in private practice or employed by the state, from providing
infertility services to any unmarried person within the State of Wazoo. The statute further
prohibits the use of any hospital, clinic or health care facility, whether public or private,
from providing such services to any unmarried person within the State of Wazoo. PFVA
goes on to read that “in the event a federal or state court finds these general prohibitions
against the provision of infertility services to unmarried persons to be unconstitutional,

Constitutional Law III-Autumn 1996 - Final Examination - Page 1 of 5

then the prohibitions shall apply only to the provision of infertility services to
homosexual couples.” Finally, PFVA mandates that coverage of infertility services under
the health care plan for state employees shall apply only to married, heterosexual couples.
The benefit officer at Wazoo State Hospital went on to tell Helen that in a highly
publicized case last year, a single woman and her male partner obtained infertility
services from a private clinic, in direct violation of PFVA. The Attorney General of
Wazoo declined to prosecute the woman’s doctor in that case, and stated publicly
(although not in court) that his office understood the primary purpose of the law to be the
prevention of childbearing by homosexual couples. As a consequence of this failure to
prosecute on the part of the Attorney General’s office, private doctors and clinics
throughout the state have continued to provide infertility services to those persons who
can pay their fees, without inquiring into the patient’s sexual orientation. Public
institutions like Wazoo State Hospital, on the other hand, have felt obliged to abide by
PFVA, and the benefit officer knows of no instance where unmarried state employees
have been able to obtain coverage for infertility services under their state health plan.
Helen’s attempt to obtain coverage for the in vitro fertilization procedure through her
health plan has therefore been denied.

Assume that everything the benefit officer has told Helen turns out to be true, and
that there are no state action or standing problems involved in Helen’s case. Assume
further that 1) PFVA does not define homosexuality; 2) PFVA defines marriage in the
traditional fashion (i.e. a state-sanctioned, legally binding contract into which persons of
the same sex cannot enter); and 3) PFVA’s stated purpose is both brief and vague -
namely, “to preserve the integrity of marriage as an institution,” and “to curb the steady
increase in out-of-wedlock births” (the legislative record contains summary findings that
out-of-wedlock births frequently result in economic hardship for both mother and child,
and that such hardship eventually places a unsustainable strain the state’s social service
budgets).

Please analyze the possible claims Helen may have under both the Equal
Protection Clause of the Fourteenth Amendment, and under the “substantive” component
of the Due Process Clause of the Fourteenth Amendment. Given that this is a preliminary
memo for your file, you do not need to arrive at any definitive conclusions regarding
Helen’s claims; rather, your analysis should include any arguments that seem plausible,
and should then identify any potential weaknesses in these arguments. In framing your
analysis, you may find it useful to discuss the constitutionality of each component of
PFVA separately. You should also consider the constitutionality of these various clauses
in the statute not only as applied to Helen, but also as potentially applied to unmarried
persons generally.

Constitutional Law III-Autumn 1996 - Final Examination - Page 2 of 5Part 2 (one and a half hours)

Two years ago, Mayor Dudley Duright was elected as the first African-American
mayor of Wazoo City. Wazoo City is the largest city in the State of Wazoo, with a
population that is roughly 50 percent African-American and 50 percent white. The
population is remarkably segregated, with almost 80 percent of all African-Americans
residing in the city’s South Side, and almost 90 percent of whites residing in the city’s
North Side. In winning the election, Mayor Duright garnered almost 95 percent of the
African-American vote, and less than 15 percent of the white vote.

Since the election, the Mayor has been under great pressure from some of his
supporters to open up economic and employment opportunities to Wazoo City’s AfricanAmerican
population. These supporters identify two areas of particular concern: city
contracting, and the racial composition of the city’s Fire Department. You have been
appointed as the city’s corporation counsel, and he calls you in to discuss these issues.
1) Contracting. The Mayor first refers you to studies showing that only 5 percent
of the contractors certified by the city to obtain public works projects are AfricanAmerican,
and that only 1 percent of all city contracts actually awarded go to AfricanAmerican
owned firms. These same studies also show that African-American contractors
are much more likely to hire African-American workers: less than 5 percent of the
workers employed by white contractors are African-American, compared to 50 percent of
the workers employed by African-American contractors.

The Mayor’s supporters find the paucity of city work going to African-American
contractors particularly galling given that poverty and unemployment in the city’s
African-American neighborhoods is almost three times higher than it is in the city’s white
neighborhoods. Moreover, under a federal program called Project HOPE, the city has just
received $1 billion, to be allocated over a period of ten years, for the rehabilitation of
Wazoo City’s low-income housing projects. Seventy-five percent of these housing
projects are located within the city’s South Side; however, if current patterns continue,
the lion’s share of Project HOPE contracts will go to white contractors.

The majority of scholars who have studied the issue conclude that the lack of
representation among African-Americans in the construction industry is the result of
long-standing discriminatory practices at a number of different levels: a history of
segregation and unequal resource allocation at the elementary and secondary school level;
past zoning practices that have encouraged residential segregation; the continued inability
of African-Americans to gain entry into trade unions that serve as the training ground for
many successful contractors; the unwillingness of banks to finance African-American
concerns (most of which are small and undercapitalized); the unwillingness of established
white contractors to take on African-American firms as subcontractors; and finally, the
well-established, albeit covert, practice in previous administrations of giving contracts
only to their political friends, the vast majority of whom were white. Despite the wealth
Constitutional Law III - Autumn 1996 - Final Examination - Page 3 of 5of historical and anecdotal evidence, however, there is no concrete evidence that the city
has engaged in systematic discrimination in the awarding city contracts at any time during
the past fifteen years.

The Mayor is aware that the courts have struck down a number of affirmative
action programs involving contracting in recent years, and is sensitive to accusations that
he cares only about Wazoo City’s African-American population. The Mayor is also
concerned that affirmative action programs too often benefit only a select group of
African-Americans, and do not address the severe problems of unemployment and
disinvestment in Wazoo City’s poorest neighborhoods.

The Mayor has therefore asked his staff to prepare a plan that he believes will
address his supporters’ concerns and survive challenge in the courts. The plan involves
only those contracts related to the $1 billion, ten-year Project HOPE program. The plan
would give a significant preference (a “plus” factor) in the awarding of Project HOPE
contracts to any firm whose principle place of business is in a “low-income community”
or whose owner is a resident of a “low-income community.” The plan would provide this
same preference to any firm that meets particular goals in hiring workers who are
residents of a “low-income community.” Under the plan, the term “low income” would
be defined on the basis of such objective measures as median income and unemployment;
the boundaries used to define particular “communities” would be identical to those that
the city has used in the past for various planning purposes. Because the majority of
Wazoo City’s low income communities are located in the South Side, the net result of the
plan would be to give a substantial preference to contractors that are either owned by
African-Americans or who hire African-American workers. Nevertheless, the Mayor’s
staff has indicated that even if the plan is implemented, the majority of Project HOPE
work will still go to established white contractors.

The Mayor expects his plan to be challenged in the courts by the Wazoo City
Contractors Association. He asks you to prepare a memo evaluating the legality of his
plan under the current law established by the United States Supreme Court. You should
argue both sides of the issue for him, but end by giving him your considered opinion on
how to the courts might come out, and how he might best frame his proposal so as to
survive constitutional scrutiny.

2) Fire Department Hiring. The second major area of concern for the Mayor
involves the method by which new firefighters are hired by the Fire Department. At the
moment, only 15 percent of the city’s fire-fighters are African-American, despite the fact
that the pool of applicants largely mirrors the general population of Wazoo City (50
percent African-American). It is well-established that up until 1980, the Fire Department
engaged in discriminatory hiring practices; indeed, getting a job as a firefighter was based
largely on your political connections to party ward bosses. As the result of several
lawsuits brought by African-American plaintiffs, and a federal consent decree
subsequently entered into by the city in 1980, the Fire Department now hires new
firefighters exclusively based on each applicant’s ranking on a written exam that is

Constitutional Law III - Autumn 1996 - Final Examination - Page 4 of 5

administered once a year. The examination is prepared and graded by a well-reputed
testing firm that screens for any potential cultural bias in the examination, and all
applicants are provided the necessary materials to prepare for the examination.
Despite claims by some of his supporters that the fire-fighter examination is
rigged, the Mayor believes that the difference in test performance between AfricanAmericans
and whites is primarily the result of the inferior schooling that AfricanAmerican
applicants have received in the past. At the same time, the Mayor is skeptical
that the existing written exam accurately measures aptitude for the job of being a
firefighter. He therefore plans to announce that starting next year, Fire Department hiring
will no longer be based on the applicants score on an extensive written examination.
Instead, the Department will administer to each applicant a short basic aptitude test; all
applicants who pass this simple test and meet other basic qualifications (physical
examinations, etc.) will be deemed qualified for hire, and will then be selected to fill
available job openings on the basis of a lottery. The Mayor’s staff predict that as a result
of this change, the makeup of the Fire Department, over time, will come to more closely
resemble the racial makeup of the city.

The Mayor has a major political problem brewing, however: the Firefighter’s
Union has learned of the Mayor’s plan, and is adamantly opposed to any change in
existing hiring practices. The Union argues that the Mayor’s plan represents nothing
more than a disguised affirmative action program, and a return to old-fashioned
patronage. The Union therefore plans to mount a major petition drive to place a binding
referendum on the ballot in the next statewide election. The referendum would
essentially require that all applicants for government employment in the State of Wazoo,
including municipal employees, be hired on the basis of their ranked performance on state
approved written examinations (the referendum would exempt the filling of certain
“political appointees” from the requirement).

The Mayor points out that for the better part of this century, the city has had
exclusive power to determine the manner in which it selects its employees. It is clear,
however, that under the Wazoo State Constitution, a majority of voters may transfer this
power to the state through the referendum process. The Mayor also believes that the
referendum is likely to pass, particularly because it is phrased without reference to race or
gender, but will be packaged solely as a “good government” measure.
The Mayor asks you to write up a brief analysis regarding the possibility of
challenging the referendum, should it come to pass, as unconstitutional racial
discrimination violative of the Equal Protection Clause. As before, you should make the
strongest argument that you can for bringing such a challenge, and then indicate the
weaknesses in your argument. In considering this question, however, feel free to present
to the Mayor any broader policy issues or theories of racial justice that are raised by his
plan and/or the referendum.

Constitutional Law III - Autumn 1996 - Final Examination - Page 5 of 5



(via NYT HT Max Paderewski)