In late 2001 the trustees of the Louisiana State University consider whether to discontinue or revamp the school’s affirmative action policy. Excerpts of a memo to the trustees, detailing the history of the school’s admission policies with regard to race, is attached as Exhibit A to this exam. The trustees eventually decide on a new policy, attached as Exhibit B. The minutes of the Board of Trustees meeting at which the change was adopted is attached as Exhibit C.
1. In the spring of 2002, Alan Ackerman, a white student rejected for admission to the university for the Fall 2002 entering class sues, alleging that the new admissions policy violates the equal protection clause.
The new policy causes a great deal of consternation on campus. In the fall of 2002 Black Students United at LSU (BSU-LSU) begins a series of rallies, every Monday at 10AM, commemorating the day and time the trustees adopted the new policy. The first few of these rallies are non-violent, if noisy. However, starting in October the rallies take on an angry tone, after a group of counter-demonstrators begin attending the periphery of the rallies. The counter-demonstrators are also non-violent, but their presence adds tension to the rallies.
At the October 22 rally, Bob Bride, a professor in the Political Science department, gives a fiery speech, talking about the history of civil rights protests, and having as its theme the idea that minorities in the United States have gained what rights they have only as a result of forcing the white majority to confront the nation’s history of discrimination. Towards the end of his speech, with the crowd getting emotional, he says the following:
“Blacks have never won any rights without shoving the Constitution in whites’ faces. Compromise has been tried. It doesn’t work. Politeness has been tried. It doesn’t work. Patience has been tried. Our patience has been tried. Our patience is OVER!”�
At that point the crowd begins chanting, “No more patience. Shove it!”� One of the members of the crowd, a student at the law school, takes his constitutional law casebook out of his backpack and throws it at one of the counter-protesters, yelling “Here’s the Constitution! Shove it!”� The counter-protester suffers a broken nose. The incident touches off a melee in which individuals on both sides are injured, several seriously.
2. Bride is arrested for inciting a riot. He claims the First Amendment as a defense.
After the riot the University president comes under extreme pressure to calm the situation. He issues the following directive:
Directive 2002-56: In order to minimize race-based misunderstandings and to promote tolerance and a spirit of inclusiveness, all student organizations shall adopt and enforce racial non-discrimination policies with regard to membership and attendance.
3. BSU-LSU, whose by-laws state that membership is restricted to African-Americans, sues to have Directive 2002-56 declared unconstitutional. Excerpts from the by-laws are reprinted at Exhibit D.
Analyze these constitutional claims. Which, if any, are likely to succeed? Why or why not?
August 28, 2001
From: Office of Research, Board of Trustees
To: The Trustees
Re: A History of LSU’s Admissions Policies With Regard to Race
. . . It is a sad but undeniable fact that LSU’s admissions policies have historically been influenced by race. From the school’s founding in 1848 until 1964, African-Americans were officially barred from attending LSU. In 1964 the prohibition was dropped, but the first African-Americans did not matriculate until 1966. Vestiges of official discrimination continued until 1972, when the last official arm of the university, the marching band, dropped its refusal to admit African-Americans.
. . . In 1973 the University began official outreach efforts to the African-American population, which culminated in the adoption of the current affirmative action policy, in 1977.
Press Release, dated September 5, 2001
Today the Louisiana State University announces a new undergraduate admissions policy. Previously the school had used a 1-100 scoring system for undergraduate admissions based on SAT scores and high school grades, with Louisiana residence, African-American heritage and one or more relatives as LSU alumni each providing an automatic 10 point increase in an applicant’s score. The new admissions policy, effective for applications for admission for the Fall 2002 entering class, is as follows:
“LSU seeks to admit an accomplished and talented entering class, representing the diversity of experiences both of Louisiana residents and Americans generally. Applicants will be scored on a 1-100 scale. Of the possible 100 points, 75 are based on SAT scores and high school grades — that is, a perfect SAT score and 4.0 GPA will lead an applicant to be scored at 75. The remaining 25 possible points will be scored based on the non-quantifiable criteria that, in the view of the admissions officer, will both ensure that the entering class contains students with special experiences and talents, and seek to compensate students who have had to surmount unusually large hurdles in the course of their education. Special experiences and talents include foreign travel or living experience, special artistic or athletic potential, military or significant public service, and unusual life experiences. Hurdles include, among other things, economic, cultural or social hardship and physical or emotional handicap.”�
Excerpts of the Minutes of the Board of Trustees Meeting, September 1, 2001
Chairman Anderson: The next item on the agenda is the new admissions policy.
Trustee Baker: This policy is gibberish. What’s going on here?
Trustee Carter: You know good and well what it is. Race-based affirmative action is on its way out. The Supreme Court is clearly hostile to it. We’ve got to do something.
Trustee Davis: Well, what does “something”� mean? Just reinserting a race preference under the smokescreen of “cultural or social hardship?”�
Anderson: Not necessarily. That preference includes all kinds of things. Cajuns would probably get a preference, if they grew up in a Cajun community. So would poor people. God knows there are lots of poor whites in this state.
Davis: Well, yeah, but everyone knows that proportionally speaking, blacks are much poorer than whites in this state. A preference for “economic hardship”� cases would catch a much higher proportion of all black applicants than of all white applicants, even if, on a raw numbers basis, there would be more poor white applicants than poor black ones.
Carter: We all know that. But we have to do something. We have a legacy of discrimination in this state. Even LSU itself. You all got the memo from the research office. And everyone knows how crummy the elementary and secondary schools are in black neighborhoods in this state.
Anderson: Yeah, and look, we’ve been thinking about revamping our admissions policy for years now, to be more nuanced about who we should give preferences to. You can’t look at the hardship criterion in isolation; there are lots of ways to get a preference here. And remember, the new policy never ever says that “race gets you extra points.”� It might not. If you were a middle class black kid with no special experiences, you wouldn’t get the preference.
Baker: I am so not convinced. We stopped discriminating almost 40 years ago. We have nothing to do with the situation in the elementary and secondary schools. And one more thing: Why isn’t this admissions policy going to the University President first, for his formal input? Isn’t that the way we usually do things?
Carter: It is, you’re right. But we don’t have time. We need to decide this now, so we can change the application packets and train the admissions staff. There’s nothing nefarious about what we’re doing.
Anderson: Maybe it’s time we voted.
Whereupon, a vote was taken and the new policy enacted by a 3-1 vote.
Excerpts from the By-laws of BSU-LSU . . .
III. Membership: BSU-LSU seeks to ensure that African-American students at LSU can socialize and discuss issues of importance to the African-American community in an atmosphere that is comfortable and free of race-based pressure. BSU-LSU believes that a distinct African-American perspective on issues exists, and that development of that perspective requires discussions within the community. To that end, even though BSU�LSU intends to work with other progressive organizations on and off campus, and even though some social gatherings will be open to all members of the University community, membership in and attendance at BSU-LSU meetings is restricted to African-Americans. Any African-American student at LSU is eligible to be a member or attend any meeting.
I. Ackerman v. LSU
1. Intentional Discrimination
The claim is one of racial discrimination. However, before the appropriate level of scrutiny can be decided it must be determined whether LSU was intentionally discriminating on the basis of race. Under the Fourteenth Amendment, a state discriminates on the basis of race only when it intentionally classifies on that basis (Washington v. Davis (1976)).
To establish intent, the following steps are taken:
(1) The plaintiff must start by proving that race was one of the reasons he was denied a spot in the entering class.
(2) If he shows this, then LSU must prove that it would have taken the same action anyway, even in the absence of that intent.
(3) If LSU makes that showing, then the decision gets only rational basis review; if not, then the decisions would be race discrimination that would get strict scrutiny
Discrimination can be shown by a variety of sources, including legislative history, a history of previous discrimination, the disparate impact of the discrimination and it foreseeability, and substantive or procedural deviations from normal government decision making (Metro. Housing Corp. v. Village of Arlington Hts (1977)).
Here, several of these factors are present. There is a history of discrimination, although that history is of anti-black, not anti-white, discrimination. The minutes of the meeting indicate the foreseeability of the racially disparate impact of the action, as well as the raw fact that it will have racially disparate impact. There is also a procedural deviation, although it seems to have the innocent explanation of needing to act quickly in order to prepare the admissions materials. Most likely a court would find that Ackerman met his burden.
The next step would require LSU to prove that, absent the discriminatory motive, it still would have made the same decision. This might be hard for LSU to prove, given that the minutes indicate an awareness of changing Supreme Court doctrine about affirmative action, and a desire to continue providing affirmative action under another guise, even though here too there evidence is ambiguous.
Most likely a court would find that LSU had not carried its burden, and that LSU had intentionally classified on the basis of race.
2. Level of Scrutiny
Race classifications get strict scrutiny (Grutter v. Bollinger (2003); Gratz v. Bollinger (2003). But strict scrutiny does not mean an automatic strike down (Grutter). In Grutter the Court upheld the state law school’s affirmative action plan because it treated race as one factor of many that increased the diversity of the student body, because the admissions plan involved evaluating each student as an individual rather than simply as a member of a racial group, and because the Court decided that racial diversity in law school education was a compelling government interest. By contrast, in Gratz the Court struck down the undergraduate admissions plan because it automatically granted points based on membership in a racial group.
The LSU plan looks more like the law school plan upheld in Grutter than the undergraduate plan struck down in Gratz. Even though the LSU plan is dealing with undergraduates, nevertheless, like the plan in Grutter, it evaluates students individually, and treats race only as one diversity factor among many. As long as the Court is willing to consider diversity in undergraduate admissions as compelling an interest as diversity in law school admissions, this plan has a good chance of surviving strict scrutiny.
Conclusion: The LSU plan will probably be upheld.
II. Bride v. State
1. Free Speech/Incitement
The question here is whether Bride’s speech is protected by the First Amendment. In Brandenburg v. Ohio (1969) the Court held that speech could be prohibited as inciting illegal activity only when the speaker intended to incite immediate unlawful conduct and the speech was likely to be successful in doing so. In subsequent years the Court has applied this test in a speech-protective manner (Hess v. Indiana (1974); NAACP
v. Claiborne Hardware (1982)).
Here Bride will probably win his claim that the First Amendment protects his speech. It’s clear that he is not arguing that unlawful activity should take place at that moment; rather, his speech is clearly of the abstract, though impassioned, sort. He made no suggestion that students do anything at that moment; his reference to patience running out must be seen as abstract oratory. Moreover, it’s not even clear whether, objectively, such unlawful conduct was likely to result. There were counter-protesters in the area; thus, there may be some argument that violence was likely. But a student shoving a book into someone’s face is hardly a natural result of a speech in which the speaker talks of “shoving the Constitution into white people’s faces.”� Even if this prong goes against Bride, he will still win because both prongs are necessary for a valid conviction.
Conclusion: Bride will probably be set free.
II. BSU v. LSU
1. Associational Rights
This question implicates BSU’s associational rights. Individuals have rights to associate, both intimately and for expressive reasons, and restrictions on that right will be reviewed strictly. (Roberts v. Jaycees (1984)).
In this case BSU probably doesn’t have intimate associational rights. Intimate associations are marked by their small size and selectivity (Roberts). Here, BSU is open to all African-American students at LSU, presumably not a small number of people; moreover, there are no membership criteria except race. Moreover, the BSU by-laws note that it will open its social gatherings to all.
However, BSU probably does have a claim to expressive association. The Court has recognized that individuals have rights to associate in order to promote certain viewpoints, e.g., political parties, rifle clubs and other similar-type groups. Unlike in Roberts, where it was unclear whether the Jaycees took any positions that were marked by a distinctive male viewpoint, a court might be sympathetic to the idea that African-Americans might want to associate among themselves in order to develop and present a distinctive African-American viewpoint on issues. Under Dale v. Boy Scouts (2000), claims by a group that it espouses particular viewpoints will be granted deference.
On the other hand, the court would surely credit LSU’s desire to minimize racial antagonism by ensuring that members of different races talk together. However, under Roberts the Court would ask whether this plainly legitimate goal could be met by a means less intrusive on associational rights. Here, that goal could have been met by the school creating forums for interracial dialogue.
Conclusion: BSU probably wins its claim of associational rights.
I. County of Austin v. Baker
The general standard for judging the constitutionally protected status of sexual speech is the test from Miller v. California (1973). Miller requires that, for sexual speech to be unprotected, it must have the following characteristics:
a.The material is such that, an average person, applying contemporary community standards, would that, as a whole, it appeals to the prurient interest (prurience being lustful desire or lasciviousness);
b. the material depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
c. the material, taken as a whole, lacks serious literary, artistic, political or scientific value.
The first and second prongs of this test are based on a community standard, but this is subject to a possible constitutional minimum (e.g., it would probably be constitutionally impermissible for any jury or judge to decide that, under a particular community’s standard, the movie “Eyes Wide Shut”� was patently offensive, see Jenkins v. Georgia (1974) (as a matter of law, “Carnal Knowledge”� cannot be considered patently offensive)).
In addition, the Supreme Court has made it clear that child pornography using live child models is unprotected, even if it would otherwise be protected under Miller (Ferber v. New York (1982)).
These rules yield the following results: first Miller prong is met; and since they depict ultimate sex acts, if a state law defines those acts with particularity then there’s a good chance that the second prong is satisfied. Without any more information about their merit, it seems like the third prong is also met, thus rendering the books susceptible to a government ban.
a. The child pornography would be subject to the Miller standard. It would not be subject the state’s wider latitude to regulate child pornography, due to the lack of child models.
b. The sex history books would probably be protected; even though they might show ultimate sex acts, these books
would probably be held to have serious merit and thus be protected.
c. The “Man’s World”� books would
probably be protected. Incidental nudity alone is probably not enough to satisfy Miller, but even if it was a state could ban these books only as part of an overall ban on obscenity, or a ban on the “most obscene”� books. But R.A.V. v. St. Paul (1992) and American Booksellers v. Hudnut (7th Cir. 1985) suggest that a state could not ban them based on their espousal of a particular viewpoint on, or their discussion of, the topic of gender relationships.
d. The Sexart books might be unprotected. The fact that the acts depicted take place in front of reproductions of art doesn’t therefore bestow artistic merit on the books.
Since the books are designed only to titillate there is a good chance that the
II. Alabama v. Collins
The issue here is whether Collins can be prosecuted for her speech. The rule is provided by Brandenburg v. Ohio (1969), which states that, for speech to be subject to prosecution for inciting unlawful conduct, the speaker must have intended to incite such conduct as an immediate consequence of the speech (i.e., not at some indefinite later point) and that the speech have been objectively likely to succeed in doing so. The Court has generally been very speech protective in applying this test (e.g., Hess v. Indiana (1974); NAACP v. Claiborne Hardware (1982)).
It’s doubtful that the first prong is satisfied here. The speech was sharp, but its call for a “purge”� seems far more metaphorical rather than a call to immediate action. Without more facts indicating that she intended immediate action — e.g., suggestions to that effect, or the brandishing of a weapon — it’s doubtful that a court would find this prong satisfied.
The second of these prongs is more difficult to analyze given the lack of facts about the
emotional condition of the crowd. However, given how speech protective the Court has been in applying this test, it is likely that nothing short of an aroused crowd ready to act at a slight provocation by a speaker will satisfy this prong.
Conclusion: The prosecution will probably fail.
II. Baker v. The Divine Way
This issue raises the question of what standards the Constitution demands for libel convictions. Libel itself is not protected, but the First Amendment imposes restrictions on the standards of proof for libel claims in order to prevent speakers from being chilled from speaking due to a fear of large libel awards. (New York Times v. Sullivan (1964)). The question turns on (1) the identify of the plaintiff as a public or a private figure, and (2) the nature of the question as one of public or private concern (Gertz v. Robert Welch (1974)). In general, public figure plaintiffs face a higher burden of proof, and claims of libel on matters of public interest also require higher standards.
In this case, Baker would probably be a private figure. Like the attorney in Gertz, there are no facts here to indicate that Baker sought the media out; he was simply a businessman engaging in his business. Nor is he a public official like the sheriff in Sullivan. However, the matter — the introduction of pornography into the community — is probably a matter of public concern, as it concerns the moral tone and character of the community. This can be compared to the situation in Dun & Bradstreet
v. Greenmoss Builders (1985), which involved an allegedly libelous credit report sent by a credit reporting agency to a requesting company, which the Court held to be concerning a purely private matter.
This is the same combination — private figure suing on a matter of public interest — at issue in Gertz. In that case the Court stated that compensatory damages could be awarded if the plaintiff proved his case by any standard more than strict liability — in particular, negligence would be a constitutionally allowable standard for compensatory damages. However, punitive or presumed damages would have to be proven by a standard called “actual malice,”� which requires the plaintiff to prove that the defendant acted with either actual knowledge of the falseness of the statement, or reckless disregard of its falsity.
Here, Baker could surely prove negligence — the newsletter did not cross-check the information before it printed it, and it even got the name wrong of the person who had in fact been arrested. This might even suffice to show reckless disregard, since presumably any minimally careful editor would have noticed the different names and at least done some more investigation.
Conclusion: Baker can probably collect both compensatory and punitive damages.