ST. THOMAS UNIVERSITY SCHOOL OF LAW

TIME LIMIT: 3 HOURS

IN TAKING THIS EXAMINATION, YOU ARE REQUIRED TO COMPLY WITH THE SCHOOL OF LAW RULES AND PROCEDURES FOR FINAL EXAMINATIONS. YOU ARE REMINDED THAT, AT THE CONCLUSION OF THE EXAMINATION, YOU SHOULD PLACE YOUR EXAMINATION NUMBER (YOUR ANONYMOUS GRADING NUMBER) ON EACH EXAMINATION BOOK. ALSO WRITE THE PROFESSOR'S NAME AND TITLE OF THE COURSE ON EACH EXAMINATION BOOK. SECURE ALL BOOKS AND YOUR EXAM WITH A PAPER CLIP, CHECK OFF YOUR EXAMINATION NUMBER AND NOTE THE TIME IN THE "SIGN-OUT" BOOK PROVIDED IN THE DESIGNATED CLASSROOM. ALSO BE SURE TO LEAVE YOUR EXAM IN THE DESIGNATED BOX.

You should have a total of four pages including this page: if vou do not have four pages notifv the proctor immediatelv.

FINAL EXAMINATION

READ THE HYPOTHETICALS CAREFULLY. WRITE ON ONLY ONE SIDE OF YOUR BLUEBOOK. REMEMBER THIS IS AN EXAMINATION: ANALYZE IDENTIFIED ISSUES CAREFULLY AND FULLY. IF YOU NEED TO MAKE AN ASSUMPTION IN ORDER TO DO A COMPLETE ANALYSIS, STATE THE ASSUMPTION UNEOUIVOCALLY AND PROCEED WITH THE ANALYSIS. REMEMBER TO ORGANIZE YOUR ANSWER AND USE HEADINGS.

The year is 2004; homelessness and unemployment are national issues. Responding to pressure from voters and business owners who are decrying the unacceptable visibility of the problem, many legislatures have passed laws regulating begging. In contrast to the situation in the last decade of the 215' century, today's homeless population is primarily women and children. Seventy-eight percent of Ames' homeless population are women with at least one child. Presidential candidates are touting New Deal type legislation promising to wage a new war on poverty. As in most states, the homeless situation in Ames has reached a critical point. Many homeless mothers have flocked to Ames generally and to South Ames in particular because the weather is tropical and homeless families are not exposed to life threatening temperatures. However, the disproportionate number of homeless families in South Ames is beginning to threaten the tourist industry, a significant source of income for the State. The effect on the tourist industry has been most heavily felt by the coastal/beach communities where tourism is traditionally high. The City of Laredo Beach is a heavy tourist attraction especially for foreign tourist; City attendance records reflect that almost three million people visit the beach annually. In March of 2003, the City of Laredo Beach, Ames passed the following ordinance:

Section 7 - (1) Purpose - To eliminate nuisance activity on the beach and to provide patrons with a pleasant environment in which to recreate.

(2) Soliciting, begging or panhandling is prohibited along the beach and the promenade sidewalk between the beach and Coastal Highway AIA.

On or about July 4, 2003, Janet Peno, wearing a placard stating "I have a right to work and feed my family and this is the only job I can get," approached a tourist on the promenade sidewalk and asked for money. Simultaneously, James Flick, a popular photographer on the beach also approached the tourist asking if he wanted his picture taken. The tourist gave Peno a penny and purchased a flick from Flick. Peno was arrested for violating the ordinance.

Peno has challenged the ordinance as unconstitutional. Analyze.

Assumption: For the purpose of this question, assume that the Supreme Court is comprised of the current Justices.

You are the clerk for the Chief Justice of the Supreme Court. The Court has heard wellbalanced arguments on two companion cases and the Chief Justice has asked you to write the first draft of an opinion that you feel can command a majority vote of the court for each case. If separate concurring opinions are likely, identify the concurring Justice(s) and explain his or her likely rationale.

Case I - The Eleventh Circuit has held unconstitutional the allowance of student-led prayer over the public announcement system at public high school football games.

Case II - The Eleventh Circuit has held constitutional the inclusion of a booklet on "Transformational Ministries" and other religious-based philosophies and programs that try to help homosexuals change their sexual orientation as one resource in a sex education course taught in public high schools.

Anticipating the Governor of Ames' executive order eliminating all affirmative action in the state's institutions of higher education, a majority of Ames' Board of Higher Education approved the issuance of a directive on January 1, 1998. It provides:

Effective for the 1998-99 school year, this Board recommits itself to the principle that merit, as measured by grades and test scores, should be the basis for student admissions to our colleges. Special consideration based on race, gender, ethnicity, or national origin should play no role in the admissions process.

An active, preferential admissions program conducted over the last 20 years has achieved a minority student enrollment in Ames colleges of about 15%. Estimates indicate that a ban on affirmative action will reduce this percentage to 1-2%. These predictions proved accurate. The number of African-American and Latino-American students dropped dramatically in the fall of 1998. The percentage of European-American and AsianAmerican students rose by a comparable amount.

Among the minority applicants rejected under the new policy was Mariela Rodriguez, a Mexican-American. Ms. Rodriguez graduated high school in 1997 and had been admitted to the University of Ames based on her GPA and SAT scores. However, the need to work to gain money for tuition required Ms. Rodriguez to defer her admission for one year. She reapplied—as was required by school rules—for admission to the fall 1998 class but was rejected. As her rejection letter explained her grades and test scores did not meet the new merit-based standards for admission.

Research by a civil rights organization revealed that the affirmative action ban did not affect the state's unwritten policy of providing a special admissions track for children of alumni, faculty members and large contributors to the University ("Legacy Admits"). Legacy admits have SAT scores substantially below the mean SAT score of the entering freshman class as a whole. In fact, they are quite similar to those earned by Ms. Rodriguez and other applicants previously admitted under the minority preference program.

Is the admission policy of the University of Ames constitutional?