Summer 1997 The First Amendment Law Exam

THE UNIVERSITY OF TEXAS AT AUSTIN

Constitutional Law II: The First Amendment

July 1-2, 1997

(Self-Scheduled– Twenty Four Hours)

Professor Balkin

Instructions

1. This examination consists of three essay questions. Each has equal weight in determining your grade. Your answers to the three questions combined should total no more than 6,000 words. You have twenty four hours from the time you pick up the exam to return it. When you are finished with the exam, please hand it in to my secretary.

2. Please read each question carefully and pay attention to what you are being asked to do. If anything about a question is ambiguous, decide what you think is meant, tell me what you think is meant, and answer the question accordingly. No reasonable resolution of an ambiguity will be penalized. If you need to assume additional facts in order to answer a question, state what those facts are and how they affect your answer.

3. You may either type your exam (which I prefer) or use blue books. If the latter, please use a separate blue book for each question. Mark the number of the question on the front of the blue book. Indicate on each blue book which question it answers and in what order it is to be read. Write on only one side of the page. Skip every other line. The easier your answer is to read, the more appeal it will have when it is viewed at 2:00 in the morning.

4. Think before you write. Organize your answer. You get extra points for clarity and succinctness. You get penalized for an answer which is disorganized and confusing.

5. This exam is open book. However, please do not use LEXIS, WESTLAW, or similar electronic databases.

6. Good luck.

Question One
(One Third)

In response to concerns about the violent crime, the City of Confusion City in the State of Confusion recently enacted a juvenile curfew ordinance. The ordinance provided, in relevant part:

58.01. Juvenile Curfew– How Enforced

Except as provided in section 58.02, it shall be unlawful for any minor under the age of eighteen (18) years to loiter, idle, wander, stroll or play in or upon the public streets, highways, roads, alleys, parks, playgrounds, wharves, docks, or other public grounds, public places and public buildings, places of amusement and entertainment, vacant lots or other unsupervised places, between the hours of ten o’clock P.M. and daylight immediately following.

58.02 Juvenile Curfew–Liability of Parent or Guardian

It shall be unlawful for any parent, guardian or other adult person having the care and custody of a minor to permit or allow said minor to violate the provisions of 58.01.

58.03. Juveniles in Public During Curfew Hours– Exceptions

The prohibitions described in section 58.01 and 58.02 shall not apply

  (1) when the minor is accompanied by his or her parents, guardian, or other adult person having the care and custody of the minor;

  (2) when the minor is on an emergency errand directed by his or her parent or guardian or other adult person having the care and custody of the minor;

  (3) when the minor is returning directly home from a meeting, entertainment or recreational activity directed, supervised or sponsored by local educational authorities; or

  (4) when the presence of such minor in said place or places is connected with and required by some legitimate business, trade, profession or occupation in which said minor is lawfully engaged.

 
The articulated purpose of the curfew ordinance as stated in its preamble is to protect juveniles from harm, and to reduce juvenile crime and violence occurring in the city. The preamble also included the following statistical information:

  1. Juvenile crime increases proportionally with age between ten years old and sixteen years old;

  2. The rate of crimes committed by juveniles has been rising steadily in Confusion City since 1985;

  3. Murders are most likely to occur between 10:00 p.m. and 1:00 a.m. and most likely to occur in apartments, apartment parking lots, streets and highways;

  4. Aggravated assaults are most likely to occur between 11:00 p.m. and 1:00 a.m;

  5. Rapes are most likely to occur between 1:00 a.m. and 3:00 a.m., sixteen percent of all rapes occur on public streets and highways; and

  6. Thirty-one percent of robberies occur on public streets and highways.

 
You have been approached by several teenagers and their parents who would like you to represent them in a challenge to the constitutionality of the ordinance.

Karen Kommitted is a 16 year old who would like to attend meetings and political rallies in a local environmental group, although these activities often go on past midnight. Michael Musician is a 17 year old member of Worthless Czech, a grunge band that regularly practices their songs in an abandoned warehouse at all hours of the night. Both Kommitted and Musician have been warned by police to cease their nocturnal activities or face arrest. Finally, Rebecca Roughneck is a 14 year old high school student who was recently arrested for violating the ordinance when she was discovered drinking beer in a public park with several of her friends.

Discuss the first amendment issues raised by the litigation.

Question Two
(One Third)

In October 1996, the Confusion State Educational Television Network (CSETN), which operates public television stations in the state, decided to conduct and broadcast a debate between the Republican and Democratic candidates for Congress in the Third Congressional District of the State of Confusion. The debate was to be broadcast on KFUS, the local public television station in Confusion City.

At that time, Ralph P. Runnerup was a duly qualified independent candidate for the Third District congressional seat running under the banner of the Radical Reform Party. Mr Runnerup was certified as an independent candidate because he had gathered enough signatures on state certified petitions. Under state law, a candidate must file petitions signed by 2,000 qualified electors in the district in which the candidate is seeking office. Confus. State. Code Ann. Sec. 7-7-103(c)(1).

When Mr. Runnerup heard about the debate, he asked to be included. CSETN and KFUS refused, on the grounds that Mr. Runnerup was not, in their words, a “realistically viable” candidate. Mr. Runnerup then wrote them a formal request, accusing them of denying him access because of political hostility to the ideas of the Radical Reform Party. CSETN and KFUS responded in writing noting that “they had no objection or hostility toward his ideas or the ideas of his party,” and that their “decision was based on their goal of presenting an opportunity for the public to listen to realistically viable candidates for office discussing the issues of the day.” The letter further noted that the Radical Reform party of which Mr. Runnerup is a member had never polled more than five percent in any election, and that polls taken in mid-October indicated that Mr. Runnerup was favored by barely two percent of likely voters.

The debate took place on October 22, 1996, without Mr. Runnerup’s participation. In the meantime, Runnerup filed suit in Federal District Court, seeking a preliminary injunction. He argued that public television stations must extend access in all sponsored debates like the one at issue to all qualified candidates. The district court denied relief. Shortly afterwards, the district court granted CSETN’s motion to dismiss the complaint under Fed. R. Civ. P. 12(b)(6) for failure to state a claim. The circuit court affirmed.

The Supreme Court has granted certiorari in this case. How should the Court rule on Mr. Runnerup’s claim of access?

Question Three
(One Third)

The Confusion City Independent School District (CCISD) Board of Education has had a longstanding tradition of including a nonsectarian invocation and benediction in high school graduation ceremonies. Historically, these prayers have been delivered by local clergy on a rotating basis in an attempt to afford representation to different denominations.

In May of 1997, the School Board decided to reconsider this policy in light of Supreme Court decisions concerning the Establishment Clause, including Lee v. Weisman, 505 U.S. 577, 120 L. Ed. 2d 467, 112 S. Ct. 2649 (1992).

The Board formulated a new policy at its May 23, 1997 meeting. The policy allowed the senior class officers to conduct a poll of the graduating class to determine whether seniors wanted “prayer, a moment of reflection, or nothing at all” to be included in their graduation ceremony. The policy was entitled “Religious Expression at Graduation Exercises,” and the text provided as follows:

After reading recent decisions of the United States Supreme Court and interpretations of those decisions, the Board of Education concludes that the long standing practice of conducting invocation and benediction prayer at graduation ceremonies and at other school functions is proper and legal under the following conditions:

  1. The Board of Education, administration and staff of the schools shall not endorse, organize or in any way promote prayer at school functions.

  2. In the spirit of protected speech, the pupils in attendance must choose to have prayer conducted. Such prayer must be performed by a student volunteer and may not be conducted by a member of the clergy or the school staff.

  3. Students may decide how best to determine what form of prayer, if any, will be given at graduation, so long as the process is conducted by duly elected class officers and the survey provides pupils with an opportunity to choose prayer, a moment of reflection, or nothing at all.

  4. Printed programs for the graduation shall include a disclaimer explaining that any presentation that may be given at commencement does not reflect the views of the School Board, the School District, administrators, staff, or other students.

On June 3, 1997, Principal Frank Fearful of the Confusion City Regional High School explained the Board’s decision to the students during the morning announcements over the school public address system. Afterwards, he introduced the senior class president who explained that a poll would be taken of the senior class. The vote was taken the next day: 128 students voted for prayer, 120 for a moment of silence, and 20 voted to have nothing at all. Students then volunteered to deliver the graduation prayer, and the senior class officers selected the senior class secretary from among those volunteers.

On June 9, Sarah Secularist, a member of the senior class, approached Principal Fearful and asked that a representative from the ACLU also be permitted to speak at the graduation to discuss safe sex and condom distribution. Principal Fearless denied Secularist’s request explaining that the time constraints of the ceremony would not permit a keynote speaker, and that the topic requested was not generally one discussed at graduation ceremonies.

Sarah’s younger sister Serena is a member of the Confusion City Regional High School Choir, and receives academic credit for her participation in the choir. For twenty five years, the choir’s teachers have used “The Lord Bless You and Keep You” as their theme song.

The words of the song are:

The Lord bless you and keep you, the Lord lift His countenance upon you; and give you peace, and give you peace, the Lord make his face to shine upon you, and be gracious unto you, be gracious, the Lord be gracious, gracious unto you. Amen, Amen, Amen, Amen, Amen.

The text of the song is taken from the Old Testament. The theme song has been sung at the end of virtually every performance, including commencement and graduation exercises. It was not sung when the choir director considered it aesthetically inappropriate; for example when members of the choir performed as a barbershop quartet. In addition, the choir sang the song on the bus on the way home from performances and at the end of class each Friday.

Students were not given an opportunity to choose a new theme song each year or to determine whether to have a theme song at all. Rather, the song was passed on as an established tradition to incoming choir teachers, who in turn taught it to each new group of students. Although there apparently was no formal, written designation of the theme song, choir teachers and students were aware that the specified song was the choir’s theme song and treated it accordingly.

The current director of the choir, Rhonda S. Foster, has argued that the song was selected “first, because it’s a beautiful piece of music, and second, because it is easy to sing and easy to learn. Besides, 60 to 75 percent of serious choral music is based on sacred themes or text. So it’s hardly surprising that our theme song would be have a religious text.”

Sarah and Serena want to know whether the decisions and policies of the Board and the Confusion City Regional High School violate the First Amendment. How would you advise them?

END OF EXAMINATION