CONSTITUTIONAL LAW ESSAY QUESTION #2 MODEL ANSWER

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1 CONSTITUTIONAL LAW ESSAY QUESTION #2 MODEL ANSWER Because of teenage pregnancy student dropouts, the Board of Education of City (Board) adopted an "Alternative Education Program" (AEP) for unmarried students under age eighteen who become pregnant. All such students must participate. AEP offers a special core educational curriculum supplemented with personal counseling and instruction on prenatal and infant care designed to alleviate the educational, emotional, social, and health problems confronting unmarried teenage mothers. Once placed in AEP, the student remains a participant through the term of her pregnancy and until the end of the school year in which her pregnancy terminates. Pam, an unmarried sixteen year old eleventh grader at City High School, is pregnant. She wants to remain in her regular classes at City High School but has been assigned to AEP. She has sued the Board in federal district court for declaratory and injunctive relief, seeking return to her regular classes. Pam's complaint alleges that being assigned to AEP violates her right to equal protection of the law guaranteed by the United States Constitution and penalizes her for exercising a fundamental right protected by the substantive due process provision of the Constitution. Shortly after Pam's suit was filed, the school year ended and during the summer Pam suffered a miscarriage. The Board has transferred Pam back to her regular high school classes and has moved to dismiss her complaint on the grounds that: (1) the action is moot; and (2) the complaint fails to state a claim for relief under the Constitution. How should the court rule on the issues raised by the Board's motion? Discuss.

2 MODEL ANSWER I. ACTION MOOT. JUSTICABILITY. ARTICLE III, SECTION 2. In order for a claim to be heard by a Federal Court, it must constitute a real live case or controversy. Mere political questions or advisory opinions will not be heard by a Federal Court. Here, Pam is seeking cognizable relief after a specific harm has taken place. STANDING. In order to have standing to assert a claim, a plaintiff must have suffered injury in fact, the injury must have been caused by the defendant, individuation of the claim must exist, and the claim must be redressible by court action. INJURY IN FACT. Plaintiff must have suffered a cognizable injury, economic or otherwise. Here, Pam wants to remain in her regular classes at City High School but has been assigned to AEP, an Alternative Education Program. CAUSATION. The Board of Education of City was the causal agent through which Pam was assigned. INDIVIDUATION. Pam has individuation in this claim, as she is not asserting a taxpayer claim, a claim for a third party, or a claim on behalf of an organization. REDRESSIBILITY. Pam is seeking declaratory and injunctive relief, which are proper types of remedies for a federal court to provide, and the relief will help to make Pam whole. GOVERNMENTAL POWER. State entities may use the road police powers under the 10 th Amendment to regulate for the health, safety and general welfare of the populace. The analysis at this point is not whether the actions of Board of Education of City were Constitutional, rather, only whether the Board was entrusted with the power to take the sort of action that he did take. Here, the Board is entrusted with the power of the state, to enact such educational policies as it deems necessary. GOVERNMENTAL IMMUNITY. 11 TH AMENDMENT. The 11th Amendment restricts the federal courts from hearing cases by individual citizens of damages, against the state. However, an individual may sue a state if the state consents. Additionally, the 11th Amendment does not bar non-damages suits, such as claims for declaratory or injunctive relief. Further, the 11th Amendment does not apply to sub-divisions / municipalities of the state. Pam is an individual, however, she is suing a state sub-division, the Board of Education of City, and she is forwarding a non-damages suit for injunctive and declaratory relief. Therefore, this claim will not be barred by the 11th Amendment.

3 STATE ACTION REQUIREMENT. Before a plaintiff can establish violation of a constitutional right, he or she must show state action, because the Constitution mainly only protects against government wrongs. Here, an agent of the City, the Board, was directly involved in the actions leading to Pam's claim. The Board will be considered an agent of the City and as such, the court will find that there is state action. MOOTNESS A case must still be live, or not moot, as a court will not render an advisory opinion but must decide a live case. Here, Pam is no longer pregnant, and she has been transferred back to her regular classes. Thus, the Board is correct in its assertion there is no more live case or controversy in this claim. CAPABLE OF REPETITION YET EVADING REVIEW. However, the Supreme Court has carved out an exception to the live controversy rule if it is a wrong capable of repetition and yet escaping review. If the wrong may possibly re-occur to a plaintiff, and cannot be litigated because the problem moves faster than the courts, or the government has voluntarily ceased but is free to begin again, the claim will be deemed as capable of repetition yet evading review, and the claim will be not be moot. Here, Pam is a 16 years-old, about to enter 12th grade, and she could easily get pregnant again before she turns 18, which is the cut-off age for AEP. Further, the AEP placement kicks in as soon as she becomes pregnant and is mandatory, and there is the possibility that Pam could be placed in the program again. Thus, this alleged wrong is capable of repetition for Pam and evading review because of its short duration. Accordingly, the case is not moot and the court should deny this part of the motion to dismiss. RIPENESS A case must not only be live, not moot, but also ripe for review. Courts look to the completeness of the record and the necessity, or lack thereof, for more fact-finding. Here, Pam has been caused sufficiently harm, and this claim is ripe for adjudication.

4 II. FAILURE TO STATE A CLAIM UPON WHICH RELIEF COULD BE GRANTED. EQUAL PROTECTION. 14 TH AMENDMENT. The equal protection clause is in the 14th Amendment of the Constitution and as such, it applies only to the states. However, it has been applied to the federal government by way of the due process clause in the 5th Amendment. CATEGORIZATION. The equal protection clause is designed to protect certain individuals from being singled out for unfair treatment. The courts apply different levels of scrutiny depending on the class the individual belongs to. Each of the classification requires the governmental action to meet certain tests before the action will be constitutional. DISCRIMINATION. Here, Pam, is an unmarried sixteen year old eleventh grader at City High School, and is pregnant. Therefore, since only the female gender may become pregnant, she could be said to have been discriminated against because of her gender, and her age. Discrimination may be shown through proving that the law is facially discriminatory, or that it has discriminatory impact / intent. Since it is so obvious that only females may become pregnant, and thus become subject to AEP, and since AEP relates only to high school students, who are almost always teenagers, the law regulation is facially discriminatory. Further, if one were to take data based on who participates in AEP, the data would show only females, and predominantly teenagers, thus showing discrimination under discriminatory impact / intent. LEVELS OF REVIEW. Gender is viewed as a quasi-suspect class under equal protection, and receives and intermediate level review. Age is viewed as a non-fundamental right, and will receive a mere rationality review. GENDER / INTERMEDIATE SCRUTINY. Important Governmental Interest. Here, the Board will assert that it has an important interest in ensuring that pregnant mothers do not drop out of school, and that they are charged with assuring those students that have educational, emotional, social and health problems, should be helped. This is an important governmental interest, because it is better for the state to meet such needs at an early date, rather than at a later time. Means Substantially Related to Ends. However, the actions of the Board will not prove that the means to effectuate the amelioration of student problems substantially fits the ends they are intended to protect. Pam is being taken away from valuable school time, which may help her later to attend college, or to secure a good job. The primary objective of schooling is to receive a stable education, and Pam is being partially denied such an education. The Board may provide birth control classes on the weekend, which do not conflict with school and education, and in such an instance the means may be substantially related to the ends, but in this instance the means to ends test fails. This claim is fatal to the Board, and Pam will prevail.

5 AGE / RATIONAL RELATION. Age is given a rational review under equal protection, and the government must only show that they have a legitimate governmental objective, that was met through means rationally related to the governmental objective. A legitimate governmental objective here, would be that the Board wishes to make sure that their students remain in school, and do not drop-out of school to due to personal difficulties. The AEP program apparently meets such a need. Therefore, under this test, Pam will fail, and the Board will prevail. SUBSTANTIVE DUE PROCESS. 14 TH AMENDMENT. Substantive due process under the 14th Amendment protects fundamental rights, which are given a strict scrutiny review. Non-fundamental rights are given a mere rationality review. Fundamental rights include the right to marry, to educate one's children, to work at a profession, to receive an education, and to do other such things related to family and privacy interests. FUNDAMENTAL RIGHTS. Procreation is the right for a person to conceive a child, is one of the rights to privacy protected under substantive due process. Here, the Board's action to infringe upon those who have procreated through mandatory attendance at AEP, is thus an infringement of a fundamental right under substantive due process. PROCREATION / STRICT SCRUTINY. The strict scrutiny test requires the government to prove the action is necessary to achieve a compelling government interest and there is no less restrictive alternative. Compelling Governmental Interest. Here, the Board will assert that it has an important interest in ensuring that pregnant mothers do not drop out of school, and that they are charged with assuring those students that have educational, emotional, social and health problems, should be helped. While this reasoning would probably be deemed as an important governmental interest, it is doubtful that it would rise to the level of compelling governmental interest, because a school is charged first with an educational mandate, not with requirements that all of the needs of children be met. Therefore, there is no compelling governmental interest, here. Necessary Means to Ends Fit. Further, there are many alternatives to helping students in difficult situations, which would not impinge on the ability of students to receive their education. After-school programs could be initiated, along with weekend programs. Since the Board has met neither prong of a strict scrutiny analysis, this claim will be fatal to the Board, and Pam will prevail.

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