Answer the following questions completely using material from class and the text. Be sure to address each part of each question. (25 points each)
In civil liberties law it often is important to determine whether a challenged practice involves governmental or private (that is, non-governmental) action. In terms of constitutional principles, why is the distinction between governmental and private action important? Use cases from class to support your answer and describe the significance of following cases in terms of governmental-private distinction. Rely on (at least) the following three cases in crafting your answer: (a) Shelley v. Kraemer; (b) Burton v Wilmington Parking Authority; (c) Moose Lodge v. Irvis.
What did the Supreme Court rule in Swann v. Charlotte-Mecklenburg (1971), the case involving the desegregation of schools in Charlotte, N.C.? What implications did the Court’s decision have for its treatment of school segregation in the North? Why?
Read the following instructions carefully before beginning this portion of the exam.
The following is the memo your intern has drawn up detailing all the background, facts and some of the arguments in a case that has come before the Supreme Court. You have been assigned the opinion in this case. Your opinion should follow the example of previous court rulings; the most important and relevant facts should be identified, the issue(s) should be explicitly stated and each issue should be addressed in the body of the opinion.
Be sure to address all constitutional issues or problems presented by the hypothetical. Any attempt to circumvent substantive constitutional issues by using justiciability requirements to dismiss the case will result in a failing grade on this portion of the exam. If you find that this case fails a justiciability requirement, explain that issue and rule on that requirement, as well as the other substantive issues.
You may rule in which ever direction you wish–you are the justice and you carry a majority. But, you are expected to show knowledge of the issues, case law, and legal approaches. If you are not using recent precedents as the controlling precedents, then you should note those precedents and explain why this case is different–distinguish this case from older cases. If you are overturning precedent, then state what the precedent is and why this case calls for the reversal of Court doctrine. If you are following precedent, again state what the previous doctrine is, what parts are applicable and which are not. Basically, although you can be creative, you are expected to display your knowledge of the class material in a well-organized and well-argued essay. (50 points.)
Lennon v. McCartney
Mac McCartney, recently re-elected Superintendent of Public Instruction for the State of West Carolina has implemented an aggressive new admissions policy for all state funded community colleges, technical schools, junior colleges, and state universities. The stated goal of the policy is to address inequalities in higher education access for poor and minority communities across the state, though McCartney has publicly insisted that this is a “race-neutral” policy. West Carolina’s Constitution grants all authority over admissions policies in higher education to the Superintendent. The state’s population mirrors many other states, with sharp disparities between whites and minorities in income, wealth, and educational attainment. The state’s school districts are also among the most highly segregated in the nation, due in large part to a population that has remained quite residentially segregated among white, black, and latino communities.
Using a metric based on a combination of data – test scores, per pupil spending amounts, percent non-native English speaking, percent of households qualifying for state or federal assistance, percent of single parent households, and a composite of teacher evaluation scores – the policy requires that each year the state create a list of the 15 most “disadvantaged” school districts (which have typically been a few poor rural districts that vary in terms of racial composition, and several poor inner city districts that are overwhelmingly African American and Latino), and the rest are classified as “standard” districts (most typically suburban districts, which are also predominantly white). Similar to a program in Texas, if you graduate from any state high school in the top 10% of your class (based on grade point average), you are guaranteed admission to any state institution of higher education you choose to attend, so long as you meet the minimum SAT or ACT test score requirements for entrance to the school. However, if you graduate from a school on the “disadvantaged” district list anywhere in the top 20% of your class (again, based on grade point average) you have access to a scholarship to attend either a junior college, community college, or technical college of your choosing. The scholarship covers 80% of tuition and books, and provides a very small living stipend for two years. Students are expected to cover the remaining costs either with their own money, or through student loans. Those in the top 10% at “disadvantaged” schools can elect to take either the scholarship, or the guaranteed admission to a state university (without a scholarship, sufficient test scores permitting). Students can, of course, refuse to accept either. No state funded scholarship opportunity exists for students in schools in “standard” districts.
Over the first 3 years of the policy’s implementation, the program has seen a substantial drop in the admission of minority students to state universities applying directly out of high school. However, the number of minority students taking advantage of the scholarship and then transferring to state schools has actually led to a small but notable increase in the diversity of the student body at the universities. And there have been major increases in the diversity of the junior college, community college, and technical schools.
Though many white students from poor communities are also taking advantage of these scholarships, the vast majority of them are going to minorities – somewhere between 65-85% of those receiving scholarships have been minority students in each of the three years. It is also the case, however, that the remaining “seats” at all of these institutions have become more highly competitive and slightly more expensive (even at the technical colleges) as this program has added a lot of new pressures on enrollment and funding for schools. State universities and community colleges are free to create additional admissions requirements for their remaining seats as they see fit, within the legal requirements already outlined by the Supreme Court and consistent with the Superintendent’s policies. Most of the junior colleges and a few of the more rigorous technical schools use a “plus” system for admissions, giving some additional weight to qualified minority applicants in the name of increasing diversity on campus.
Leo Lennon is a white student from a lower-middle class family that graduated outside of the top 10% (but inside the top 20%) of his class in a “standard” school district. Thus, he was not guaranteed admission to a state school, nor was he eligible to receive any scholarships to attend junior college, community college, or technical school. He has also had his application rejected by the two top ranked state schools in the system. He has not applied for admission to any other state universities or colleges.
He has sued the Superintendent over the policy, claiming that 1) many students with lower G.P.A’s and test scores than him are being guaranteed admission to state schools, making this policy discriminatory; 2) that the scholarship system is also discriminatory, since he cannot have access to a state resource that other students (who may or may not actually be in greater disadvantage than he is) can access; and, 3) that the entire system is ultimately a disguised form of an unconstitutional race-based affirmative action system since it explicitly seeks to to single out and advantage minority students over white students by using “proxy” metrics. Further, Lennon argues that the impact of the policy has been to all but completely shut students like himself out of not only the state university, but even the junior and community colleges, which have raised their standards, costs, and continued to use “plus” systems for admitting racial minorities over white students. He claims that the entire impact has been to alter admissions policies in the state to all but exclude students like Leo who, using purely “neutral” categories of test scores and GPA, would have been easily able to attend one of the higher quality state schools, and would have had more affordable tuition without the impact of the scholarship program.
The State and the Superintended have continued to argue that this policy is not race-based, and is furthering a legitimate government interest in creating more equal access to higher education, and a more diverse student body. Though the data appears to show that the state has created a state-sponsored scholarship for minority students, this is simply an outcome of already-existing demographics. Further, the policy has actually produced some decrease in the number of 18 and 19 year old minority applicants to state universities. Finally, the use of the “plus” system in admissions for the remaining “seats” in schools is constitutionally defensible.
The State Supreme Court and Federal Appellate Courts have both ruled in favor of the of the state and the superintendents’ policy, claiming that this admissions policy, while quirky, is in fact neutral according to race and accomplishes a legitimate state interest. However, vociferous dissents have been written at each level claiming that the policy, both in design and in terms of the outcomes, does in fact discriminate on the basis of race (in addition to both where one happens to live and their socioeconomic economic standing). Thus, this policy requires strict scrutiny and, ultimately, to be declared an unconstitutional violation of Lennon’s rights, due to the arbitrary nature of the admissions and scholarship awarding processes. Both of these dissents have also taken aim at the continued use of the “plus” system itself for admissions for the remaining seats at the colleges, indicating these should also be declared unconstitutional.
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