Professional Documents
Culture Documents
From:
Re:
First, let me apologize for the extreme tardiness in getting this memo to you. Due
to a miscue between me and my secretary in Springfield, I thought it had been faxed to
the registrar and distributed over two months ago.
Second, let me say how generally pleased I was with the quality of this years
exams. The questions were tough-but the vast majority of you handled the main issues
well, leaving me to score the exams mostly on the precision and subtlety of your answers.
The memo below gives you a basic idea of the analysis I was looking for in
grading the exams, as well as some of the thoughts that you may have raised and for
which I assigned appropriate credit. This memo isnt intended to be exhaustive (although
it is obviously far more comprehensive than I would have expected from any exam, given
the time limits you were all working under); there may be issues that some of you
identified that represent sparkling insight and for which you were awarded credit, but
which are not included in this memo.
Each exam should have three grades on the cover. The circled grade is the
official grade. The other two grades are by part. These latter grades are basically
provided for your information, but they do not necessarily average out to your final grade,
since the final grade took the curve into consideration.
One way to approach this question is to first consider whether Futuras ban on
cloning would violate the constitutional rights of Dolly if she were competent and
decided to reproduce herself through cloning. If the answer is yes, then Futuras outright
ban would presumably be struck down, and we can move to the narrower question of
whether consent requirements of the sort instituted in those states that permit cloning are
also unconstitutional.
As most of you recognized, whether a decision to clone ones self is
constitutionally protected from government intrusion largely depends on whether such a
decision falls within the ambit of fundamental rights recognized by the Supreme Court
under the substantive prong of the Fourteenth Amendments Due Process Clause.
There are several related arguments for the fundamentalness of the cloning decision.
First, Dolly might argue that a decision to clone herself involves the right to
procreate, a right the Court first deemed fundamental in Skinner v. Oklahoma. Skinner
involved the selective sterilization of convicts, and hence was decided under the Equal
Protection Clause; by definition, Futuras outright ban on cloning involves no such
classifications. Nevertheless, both the language of Skinner and a line of subsequent
right to privacy cases decided under the Due Process Clause (Griswold, Eisenstadt,
Carey, and Roe) all argue for a broad reading of the right at stake: a right to make
decisions regarding childbearing free from government interference - at least absent a
government showing that such interference is narrowly tailored to serve a compelling
government interest. Moreover, although Griswold appeared to rest its opinion on issues
of marital privacy and the sanctity of the home, Eisenstadt, Carey and Roe clearly
extended the right beyond the boundaries of the home or marital intimacy.
Does cloning fall within this fundamental zone of procreation/privacy? As many
of you discussed, the answer probably depends on the degree to which the Court
embraces or rejects the notion of tradition as a mechanism for curtailing the scope of
the substantive Due Process Clause. In Michael H., Justice Scalia argued that
constitutionally protected substantive rights under the Due Process Clause must be
defined at their most specific, traditionally recognized level. This is the approach taken
in Bowers v. Hardwick, for example, where the right at issue is described by the Court
not as the right to sexual intimacy between unrelated, consenting adults, but rather as the
right to engage in homosexual sodomy.
As applied to this case, Justice Scalias approach might lead to an extremely
narrow description of the right asserted by Dolly. Indeed, Scalia might argue that cloning
does not even qualify as procreation under a standard dictionary definition of the term
(for what its worth, Websters Dictionary defines procreation as to bring a living thing
into existence by the natural process of reproduction.) Given the recent vintage of
cloning technology, it would be difficult to argue that a narrowly-defined right to clone
ones self is deeply rooted in the Nations history and traditions. Moore. In the
absence of any deeply rooted tradition, Scalia would argue, and in circumstances where
the states exhibit no clear political consensus on the issue, the Court has no business
minting a new right or liberty interest to protect, but should instead evaluate Futuras
ban under rational basis review.
Whether a majority of the current Court would in fact embrace such a cramped
reading of the right to privacy/procreate cases is not entirely clear. On the one hand, a
majority of the Court appears to reject Scalias approach in Casey. In that case, Justice
OConnor not only defends an activity that enjoyed a record of protection prior to Roe
that was spotty at best, but also uses relatively expansive language to connect the abortion
right with the contraception cases, indicating that these cases all involve decisions
concerning not only the meaning of procreation but also human responsibility and respect
for it. Indeed, it might be argued that for a majority of the Court, the outcome in
Bowers depended in part on the fact that there was a long-standing tradition of
prohibiting sodomy, and that in the absence of such a specific, traditional prohibition on
cloning, the Court must necessarily rely on general principles - such as individual
autonomy, or reproductive freedom - in evaluating the constitutionality of Futuras ban.
Dolly might also point out that Bowers emphasizes the absence of any childbearing
interest with respect to sodomy, and that such a childbearing interest (through admittedly
untraditional means) does exist in this case.
On the other hand, the reasoning of the majority opinion in Washington v.
Glucksberg appears to closely track Justice Scalias; not only does the Court identify
tradition and a careful description of the asserted fundamental liberty interest as the
guideposts for responsible decision-making in substantive Due Process cases, but the
majority opinion also explicitly rejects a more fluid approach suggested by Justice Souter,
in which tradition is understood as a living thing. Again, Dolly might argue that the
analysis in Glucksberg rested heavily on the strong tradition against assisted suicide, a
tradition that is not present in this case; she might also argue that while Justice OConnor
provided the fifth vote for the majority opinion in Glucksberg, OConnor went on to write
a concurring opinion in which she appears to distance herself somewhat from the
tradition-laden language of the four other members of the majority. Still, the Glucksberg
opinion indicates at the very least a deep hesitance on the part of the Court to further
broader the scope of interests protected under the substantive Due Process Clause.
A few of you suggested that a competent Dolly might have more luck couching
her decision to clone solely as an issue of bodily integrity. Irrespective of whether
cloning is or is not procreation, the argument runs, there clearly exists a long-standing
tradition, both under the common law and under constitutional interpretation, of
protecting an individuals choice to reject even life-sustaining medical treatment.
The same concern is evident in the abortion decisions; the state cant force a Cruzan.
woman to maintain a pregnancy against her wishes. Roe. If the state cant force a
woman to bear a child or accept life-sustaining treatment, why should it be able to control
her decision to clone absent a compelling (or at least important) government interest?
The problem with such an analysis, of course, is that the Court has never
interpreted the Due Process Clause to protect a persons right to do whatever he or she
wants with his or her own body. The prohibition on suicide is just one example of a
constraint on bodily autonomy that the Court considers constitutional; other examples
include prohibitions on the ingestion of illicit drugs, prostitution, and the sale of body
parts. A focus on bodily integrity/autonomy does highlight the possibility, however, that
the Court might apply a balancing test of the sort used in Casey and Cruzan. In those
cases, the Court refrained from clearly identifying the decision to have an abortion or to
reject life-sustaining medical treatment as fundamental, but did acknowledge such
decisions as liberty interests that deserve some constitutional protection. Applied to
our case, a Court might determine that Futuras outright ban constitutes an undue
burden on Dollys decision to replicate, while upholding regulations that severely restrict
the circumstances under which cloning technology might be used.
It is important to recognize, however, that the term liberty interest is just as
malleable as the term fundamental right, so that the use of a balancing approach by the
Court does not avoid the definitional problems already discussed. For example, the Court
might recognize a broad liberty interest in medically-assisted procreation, but still find
Futuras ban on cloning to be merely a restriction on one highly specialized technique
among many. Under such an analysis, the fact that cloning might be the only means of
bearing a genetically-related child for a handful of people like Mary and Joseph might
trouble the Court; on the other hand, several of you were correct to point out that in
Casey, Justice OConnor expressed little concern for the fact that for some women,
waiting periods and other restrictions might constitute an effective ban on abortion, and
not merely an inconvenience incidental to an otherwise available right.
Mary and Josephs Claims
Most of the discussion above regarding the appropriate standard of review with
respect to Dollys potential claim applies with equal force to any consideration of Marys
and Josephs potential claims. Again, its worth considering first what Mary and
Josephs claims might be if not complicated by the fact of Dollys incapacity - in
circumstances, say, where Dolly is terminally ill but competent and consents to the
cloning procedure. Under such circumstances, it might be argued that Mary and Josephs
claim of a right to procreate through cloning is even more persuasive than Dollys,
since a) any cloned child would be in fact a product of Mary and Josephs genetic
mixture; b) Mary and Joseph might have no other means of bearing a child genetically
related to both of them; and c) the cloned embryo would be implanted in Marys womb
and Mary would carry it to term like any traditional pregnancy.
Described in these terms, it would be difficult to differentiate the cloning of Dolly
from the use by other techniques commonly used by infertile couples to conceive - i.e. in
vitro fertilization, the use of donated eggs, and so on. None of these technologies are
traditional as that term is commonly understood, and yet it is hard to imagine the Court
sanctioning an outright prohibition on their use without a pretty compelling reason for
doing so. The fact that these new technologies increasingly facilitate post-menopausal
child-bearing raises further doubts that any constitutional analysis of cloning can rest
simply on the natural limits of reproductive capacity.
Futuras Interests - How Compelling?
Depending on how the Court resolves the fundamentalness issue, the Court
would evaluate Futuras justifications of its ban on cloning under either a) strict scrutiny
(in which case the ban would need to qualify as narrowly tailored to achieve a
compelling government interest); b) rational basis review (in which case the ban would
merely have to be rationally related to achieving an legitimate government interest); or c)
a more fluid balancing test of the sort employed in Casey and Cruzan. (I should note, by
the way, that the first two of Futuras asserted rationales for a cloning ban are drawn
almost verbatim from President Clintons Commission on Human Cloning, which sought
to explain its recommendation for a moratorium on any attempts to clone humans. The
third rationale summarizes some of the arguments offered by various medical ethicists in
the debate surrounding cloning.) Below we consider each of Futuras rationales in turn:
1) Preventing psychological damage, etc. As most of you recognized, the weakest
rationale offered by the state appears to be its asserted interest in preventing a class of
clones who may experience psychological damage, ostracism or even discrimination as a
class. While the interest in protecting children generally, and cloned children in
particular, is certainly legitimate and probably compelling, the means the state has chosen
can hardly be described as narrowly tailored, and would therefore not support the Futuras
ban under any form of heightened scrutiny.
To begin with, the hypothetical offers no evidence of cloned children experiencing
a disproportionate amount of psychological damage and social ostracism. But even if
cloned children did experience such problems, the state surely cannot use possible
evidence of societal bigotry against a class of children as a justification for preventing
such children from coming into existence, any more than it can use bigotry to justify
discriminatory child custody policies (Palmore) or discriminatory school assignment
policies (Cooper). To hold otherwise would be to endorse a not-so-subtle theory of
eugenics that might conceivably support state policies to prevent the birth of other groups
who experience psychological difficulties, social ostracism and discrimination - e.g.
minorities and the disabled.
Indeed, it is not clear that this rationale could survive even rationale basis review.
As several of you noted, in Cleburne, the Court reject the states use of social ostracism
against the mentally disabled as a justification for discriminatory policies against such
persons, even though it declined to hold that the classifications based on mental disability
constituted a suspect classification under the Equal Protection Clause. If the state
wants to prevent discrimination against the cloned, it can pass anti-discrimination laws.
2) Preventing objectification. organ harvesting, etc. The states asserted interest
in preventing the objectification of children and the possible abuses that might attend
such objectification is only slightly more persuasive than the social ostracism rationale.
Concerns about the objectification of children seem to rest on the assumption that
cloned children will be treated differently from children produced in the traditional
fashion, an assumption that is not supported by the evidence. And although the interest in
preventing organ harvesting or other abuses against cloned individuals - including
children -- seems compelling (particularly in light of some of the more far out reports that
have come out since I wrote the exam, regarding the possible creation of headless
clones!), the state has at its disposal a wide range of means (e.g. bans on organ harvesting,
bans on child abuse, etc.) that already prevent commerce in humans or human body parts.
out, it was just such moral judgments that the Court in Bowers found to be sufficient in
upholding the ban on consensual homosexual sodomy at issue. Whether such moral
justifications are enough to survived heightened review is a closer question. On the one
hand, it might be argued that the moral judgments at issue with respect to cloning are far
more profound than the moral questions involved in consensual sodomy - tinkering with
the basic building blocks of life is obviously discomfiting, as are the possibilities of a
world in which ones child is ones genetic twin, scientists claim they are God, and the
very concept of individuality is called into question. On the other hand, to the extent that
the Court is forced to grapple with such weighty issues, it might prefer to do so in the
context of deciding whether cloning is or is not a fundamental right, rather than establish
the troubling precedent that the states moral judgments, standing alone, can override an
individuals fundamental rights or liberty interests.
Question 2
Having examined possible constitutional claims under the best of scenarios - that
is, where Dolly is competent and gives her voluntary and informed consent to be cloned we can now turn to the question of how her incapacity affects the analysis.
As a starting point, we can assume that if the Court upholds Futuras outright ban,
either because cloning is not a fundamental right or because Futuras asserted interests are
sufficiently compelling to override Dollys or her parents liberty interest in cloning, then
the Court will determine that less restrictive regulations on cloning - such as the informed
consent requirements imposed by those states that permit cloning - also do not violate
Dollys or her parents rights under the substantive prong of the Due Process Clause.
This greater includes the lesser argument does not insulate, however, the
consent regulations from attack under the Equal Protection Clause. Even if the act of
cloning itself is not a constitutionally protected right, selective restrictions on the activity
might still be subject to some form ofjudicial review. The informed consent requirement
imposes at least one such classifications: it distinguishes between parents of terminally ill
minors, who are permitted to clone their child without the childs consent, and parents of
terminally ill, comatose adults like Dolly, who must show clear and convincing proof
of their childs consent.
Unfortunately for Mary and Joseph, this particular classification is not considered
suspect under the Courts Equal Protection jurisprudence, and hence would be subject
only to rational basis review. As noted above, such a standard of review provides states
with the widest possible latitude in crafting public policy. Here, the consent requirement
appears to be designed to prevent the possibility that a person will be unwittingly cloned;
such a goal seems entirely legitimate, not merely because of the disturbing psychological
and sociological implications that might arise in a legal regime in which an individual
could be cloned without his or her permission, but also because such a goal comports
with the well-established common law of battery, which forbids the touching of one
person by another without consent or legal justification. Cruzan. And given the long-
standing legal distinction between adults and children with respect to their respective
abilities to grant consent, it would be difficult to argue that the consent rules at issue here
are arbitrary or irrational -- even if the rules fails to take into account those situations in
which adults are unable to provide their consent due to a persistent vegetative state.
Mary and Josephs last hope would be to argue that Dollys general statements
regarding cloning do in fact constitute informed consent to be cloned, or, in the
alternative, that Dollys living will delegates to Mary and Joseph all medical decisions,
including the decision to have Dolly cloned. Like the parents in Cruzan, Mary and
Joseph would go on to argue that the states imposition of a clear and convincing
evidentiary standard violates Dollys right to have her wishes regarding medical
treatment (or the delegation of decision-making authority) in the event she fell into a
permanent vegetative state determined accurately and followed faithfully.
Under rational basis review, its hard to see how Mary and Joseph could succeed
in this claim. After all, the Court rejected almost exactly the same argument in Cruzan.
It did so despite a willingness to assume that the decision to reject even life-sustaining
medical treatment was quasi-fundamental, and despite the fact that it therefore
subjected Missouris evidentiary law to heightened scrutiny.
There are at least two differences in the fact pattern involving Dolly that might
distinguish our case from Cruzan. First, Nancy Cruzan did not leave behind a living will
explicitly delegating decisions regarding medical treatment to her parents in the event of
incapacity; Dolly did. Setting aside for a moment the serious interpretive questions
involved in defining medical treatment to include cloning, it might be argued that the
right to delegate medical decision-making to a surrogate in the event of incapacity is itself
a fundamental right or liberty interest, separate and apart from the issue of whether the
decision to be cloned is a fundamental right or constitutionally protected liberty interest.
In support of such an argument, one might point to Justice OConnors footnote in
Cruzan, in which she states that the Court has reserved the question of delegation of
decision-making authority. Mary and Joseph obviously wouldnt be home free under
such an interpretation of precedent - a state might still insist that Dollys decision to
delegate authority did not encompass the decision to clone, and that determining her true
wishes must still be made under a clear and convincing test - but at least Mary and
Joseph might have a shot.
A second difference between Cruzan and our case involves the nature of the
underlying decision being made. As many of you observed, the Court in both Cruzan and
Glucksburg emphasized the finality of the decision in right to die cases, and the parade
of horribles that might result from blurring the line between natural death and suicide
or assisted suicide (financial pressures on families, biased assistance for the
handicapped, the slippery slope into euthanasia, etc.). As substantial as the psychic harms
from cloning may be, it can be argued that they do not compare in severity to the harms
involved in a hastened death, and hence do not justify an evidentiary rule so strict that it
prevents a pair of loving parents from cloning a child who suffered an untimely death.
Again, such an argument might not work under rational basis review, but it would be
worth a shot.
Up to this point, our analysis of the consent requirement has assumed that the
Court declined to find the decision to clone to be a fundamental right, or at least a
constitutionally recognized liberty interest. How would our analysis change if it did make
such a finding?
In all likelihood, the arguments available to Mary and Joseph wouldnt be that
different from those available under rational basis review - particularly if we assume that
even under heightened scrutiny, the Court would not strike down as invalid per se consent
rules designed to prevent individuals from being cloned willy-nilly without their
knowledge or consent. The final outcome might not change, either - for reasons
discussed above, the consent requirement certainly does not appear to be significantly
overbroad. For our purposes, it is sufficient to note that the Court would give Mary and
Josephs arguments more attention under heightened scrutiny, and would scrutinize with
more care both the rationale behind the consent requirement and the narrowness with
which the requirement was drawn. Thus, the Court might find a states interest in
preventing the unauthorized cloning of individuals by unrelated third parties to be
compelling, but might question whether the state has an equally compelling interest in
preventing Dolly from delegating the authority to clone to her parents. Similarly, the
heightened scrutiny called for under the fundamental rights prong of Equal Protection
analysis might lead the Court to question a rule that prevents Mary and Joseph from
cloning Dolly while permitting parents of terminally ill minors to clone their child.
Although there are several ways of approaching this question, I would probably
start by considering whether the Splitsville School Board, in establishing Ujamaa School,
is engaging in either de jure or de facto segregation of students on the basis of race, in
violation of the Equal Protection Clause and Brown v. Board of Education.
In Brown, the Supreme Court held that public school facilities that intentionally
separate students by race are inherently unequal, and thus a per se violation of the
Equal Protection Clause. Although the original proponents of Ujamaa called for an allblack, all male school, the fact pattern is ambiguous as to whether the Splitsville School
Board incorporated such explicitly racial language in the actual plan it voted on and
adopted. If so, such race-based language, standing alone, might be sufficient to persuade a
court that de jure segregation is at issue here.
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Ujamaa will exacerbate the degree of segregation that currently exists as a result of
housing patterns and white flight. So long as the racially-neutral admissions criteria are
maintained, the school board could argue, the Court has no constitutional basis for
presuming that the choices of some parents and students not to apply to Ujamaa are the
result of invidious intent or action by the school board, any more than the Court had a
constitutional basis for imputing discriminatory motive on the part of a school board that
fails to adjust district lines for purposes of maintaining racial balance in the face of
changing demographics. Spangler.
How might a court sort through these conflicting arguments? In part, it would
depend on how the court interprets the intent requirement first announced in Washington
v. Davis. If discriminatory intent means merely the intentional taking of race into
account in designing government programs, then the totality of the evidence with respect
to how Ujamaa came about (i.e. the intent of the two board members who originally
proposed the plan, the racial orientation of the curriculum, etc.) would probably meet
such a standard, irrespective of the facially-neutral manner in which students are selected,
and the facially-neutral ends (improved academic performance) that the racially-oriented
means are ostensibly designed to serve. If, on the other hand, invidious intent speaks to
some form of active animus on the part of state actors towards the group to be
disadvantaged by the its action (as cases like McCleskey seem to suggest), then the school
board can plausibly argue that the intent test is not met.
Indeed, one of the difficult questions facing a court in determining whether the
establishment of Ujamaa constitutes intentional race-based discrimination is the absence
of an obvious victim or group of victims that have suffered discriminatory effect/impact.
Imagine for a moment that the Splitsville school board concedes that it created Ujamaa
specifically to benefit African-American students. The school board might nevertheless
argue that Brown and subsequent desegregation cases have no application to this case,
precisely because no one is harmed. As we touched on above, the board might argue that
Brown and its progeny were primarily concerned with the stigmatic harms that Jim Crow
conveyed, the racial stereotypes and socio-economic subordination that segregation
perpetuated, and the circumstances on which such stereotypes feed. Because the selfsegregation at issue in Ujamaa is designed to empower, rather than stigmatize and
subordinate, African-American boys, the school board might argue, the Ujamaa plan is
perfectly consistent with the true spirit of Brown.
Such a subordination or stigmatic harm approach to Brown obviously has its
adherents. Indeed, a number of Supreme Court justices used a variant on this reading of
Brown to justify the use of intermediate scrutiny in evaluating affirmative action
programs; according to these justices, it is possible to distinguish between benign and
invidious race-based classifications by examining whether the classification stigmatizes
a minority group and/or reinforces there subordinate status. Bakke, Adarand (Stevens
dissent). Such an reading of Brown might appear particularly compelling in a case like
ours, where a) the school board acted on the suggestion of two black members and with
the apparent support of Splitsvilles black community; b) Ujamaa has no appreciable
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impact on either black or non-black students who choose not to enroll in Ujamaa; c) those
students who are enrolled in Ujamaa were already attending schools that were essentially
segregated; and d) because of previous court rulings (e.g. Spangler, Miliken, Jenkins II)
that restrict the ability of school boards to counteract segregated housing patterns and
economic stratification, the school board is essentially powerless to assure that students
attending these segregated schools will ever enjoy the presumptive benefits of integrated
schools. Under such circumstances, it might be argued that any opinion striking down a
promising program like Ujamaa as race-based school segregation would be elevating
form over substance.
Of course, as many of you pointed out, it is precisely such an approach to Equal
Protection jurisprudence - an approach that insists on color-blindness with respect to
all government action - that the current Supreme Court would seem most likely to apply
in evaluating Ujamaa. For if in fact benign segregation of the sort taking place in
Ujamaa can be analogized to affirmative action. then the Supreme Court has already
rejected the notion that such benign racial classifications should be subject to a lower
degree of scrutiny than invidious racial classifications. Croson, Adarand.
Moreover, it might be argued that a case like this one underscores the wisdom of
such an approach. How, for example, might a court distinguish between a school boards
benign, as opposed to invidious, act of segregation? Surely, the intent of Splitsvilles
black school board members in supporting the Ujamaa plan cannot be dispositive; not
only is it possible that these officials have themselves been infected by the race-conscious
belief that black males somehow cannot cope in regular school settings, but the school
board as a whole might be motivated as much by political expediency - a symbolic,
costless solution to the daunting problems facing the public schools - as they are by the
genuine needs of black children. Likewise, the fact that a particular majority of black
parents may support all-black schools cannot be dispositive - we might all agree that our
rights under the Equal Protection Clause are not subject to plebecite.
In fact, it is worth noting that in Bakke, one of the means by which liberal justices
like Brennan and Marshall proposed to distinguish between invidious and benign
racial classifications was whether the classification promoted or discouraged segregation
of the races - a test that would hardly be helpful to the Splitsville school board in this
case. Of course, the school board might argue for a fact intensive, totality of the
circumstances approach for discerning whether Ujamaa constitutes invidious or
benign segregation, an approach that would take into account the voluntary nature of
the pilot school, its negligible impact on the school system as a whole, and the concrete
benefits (at least in terms of test scores) that the boys enrolled in Ujamaa seem to be
receiving. But according to Justice OConnor in Adarand, it is precisely to encourage
such a fact intensive inquiry, rather than to permit facile pre-determinations regarding
what is benign and what is invidious, that the Court now insists on subjecting all
racial classifications to strict scrutiny.
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court might insist be allocated on the basis of neutral criteria. A white student might
argue that he or she is less likely to be taught by a black male teacher as a consequence of
Ujamaa, and that the experience of a race- and gender-diverse teaching staff is a good of
some sort, but its hard to figure how the Court could recognize such a nominal reduction
in potential diversity as a constitutionallycognizable harm without opening the door to a
wide range of other diversity-based claims within existing school systems.
A claim brought by white students might thus have to rely on some theory of
expressive harm - i.e. a theory that irrespective of any concrete harms that white
students may suffer, they, like students of all races, are diminished in some fashion
whenever the government acts on the stereotypical notions of race. From a normative
perspective, such an approach is perfectly defensible; indeed, Justices Scalia and Thomas
would probably argue that it is precisely such a normative perspective that was the lasting
legacy of Brown. Such an expressive harm theory also appears to underlie the Courts
holdings in voting rights cases like Shaw v. Reno. (I am aware that I didnt assign Shaw
v. Reno in the readings for the course, but have no fear; I gave those of you who
recognized the problem of a lack of discriminatory effect/harm full credit for your insight,
even if you didnt have a cite or use the term expressive harms.) Nevertheless, it is
worth noting that the recognition of such a generalized, societal harm is in strong
tension with a number of traditional standing requirements, and would appear to run
contrary to the very notions of individualized harm that the Court has used in cases like
Adarand to attack affirmative action programs.
As for Latino and/or Asian students, a number of you argued that they do suffer a
more specific harm as a consequence of the Ujamaa plan (a harm discussed further below
in the context of gender claims). The argument runs something like this: by instituting
the Ujamaa plan, the Splitsville school board has acknowledged that a culturally
sensitive curriculum has a real impact on student performance. And once the school
board makes such a concession, it is obligated to provide the advantage of a culturally
specific curriculum for all minorities that may be under-performing within a traditional
school setting - not just African-Americans. Although it is doubtful that the Supreme
Court would ground its evaluation of Ujamaas constitutionality on such widely contested
theories of cultural bias in school curriculums, the argument does highlight one of the
underlying fears that would lead the Court to strike down a plan like Ujamaa - namely,
the fear that any semblance of race-specific schools will inexorably lead to wide-spread
racial and ethnic balkanization.
Question 2 - Gender Claims
As most of you recognized, VMI provides the starting point for evaluating
potential gender claims against Splitville. The decision declined to hold that statesponsored single-sex schools, like racially-segregated schools, are per se illegal; Justice
Ginsburg reiterated that gender classifications are not treated with the same degree of
scrutiny as race classifications, and -- without squarely deciding the issue -- suggested
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widely-publicized study - released since you took the exam -- that questions some of the
previously-assumed benefits to girls that attend sex-segregated schools.)
Question 3 - Is Ujamaa a Good Idea?
I have no model answer for the third question in this part; the purpose of the
question was simply to give you an opportunity to consider some of the issues raised
above and arrive at your own conclusions. I did find it interesting that, based on a
justifiable skepticism in the prospect of truly integrated schools and an equally justified
concern over the desperate condition of many inner city schools, a slim majority of you
favored the idea of a Ujamaa-type program (although a far larger majority concluded that
as a legal matter the particular program outlined in the hypo couldnt survive
constitutional scrutiny).
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