EXAM NO. ___________ Professor Brant
Constitutional Law II May, 2000

GRADE POSTING: If you do not wish to have your grade posted (by exam number) in this course, please place an X by your number on the exam and on your answer.

1. This exam is "open universe." Any source materials may be used. All plagiarism rules are in force! If you quote from any source, be sure to cite your source.

2. Three hours will be allotted for the examination. Blue books will not be passed out for the first 1/2 hour. This time should be spent reading the question and outlining your answer. You may begin writing in your blue books when you receive them.

3. There is no presumption that use of a case name results from knowledge of its contents. Discuss and analyze any case law you plan to use in your answer.

4. You must turn in your examination with your answer.

5. You may not discuss this examination with anyone, either while you are taking it, or at any time during the examination period.

The Federation for the Restoration of the Ten Commandments (the "Federation") was poised and ready to take over the village of Stepford, South Dakota. They had a strong slate of candidates ready to run for the school board and the village council. With a majority in those local governance bodies, they felt that they could counter those ungodly attacks on family values that had been razing their community (as they saw it) since the sixties.

Federation candidates ran clean campaigns, with lots of door to door canvassing. They didn't talk about religion, they just talked about family values, and keeping out the wrong kind of people, and putting morals back in the schools, and so forth. Their message was well received in Stepford, and on election day they swept the school board (winning 7 out of 9 open seats on an 11 member board) and the village council (winning 5 of 7 seats on a 7 member council).

Two days after the election, Timmy West, the son of a Federation member and an avid computer hacker, broke through firewalls and obtained unauthorized access to the computer in the Stepford Family Planning Clinic, a private clinic that performed abortions. Timmy obtained a patient list, and created a web site, on which he identified every patient of the clinic. He added links connecting his web page to the web pages of Operation Rescue and other anti-abortion activists, and encouraged his readership to treat the listed persons "as you would any proven child molester." One of these teachers, Sarah Campbell, had been to the clinic for an annual pelvic exam, and had never been pregnant. However, Sarah had briefly worked as an exotic dancer in Vegas when she was young, and Timmy had found and posted a promotional picture of Sarah in her skimpy dancing attire. Timmy titled his web page: "BABY KILLERS AND HARLOTS IN STEPFORD."

Word of Timmy's web site got around quickly. The school board discussed it, and voted 7-4 to fire the three public school teachers (including Sarah) listed on Timmy's website. The principal sent the three teachers letters of termination citing their "immoral conduct" as the grounds. The local newspaper wrote up the whole story, described Timmy's website (and included its address, so readers could locate it easily), published the principal's letter, and published the picture of Sarah. Sarah sued the school board and the principal for defamation. The defendants argued that the web site had made her a public figure, that abortion was a matter of great public concern, and thus the New York Times v. Sullivan standard must be met in order for liability to attach. They also argued that her past work as an exotic dancer made the characterization of her as "immoral" subject to the defense of truth.

Federation members began picketing the homes of the three fired teachers, wearing signs that read "CHILD ABUSERS LIVE HERE" and "NO BABY KILLERS IN OUR TOWN" and (at Sarah's house) "WOMAN OF SODOM." They ringed the teachers' houses with protesters, arrived before dawn, used loudspeakers and formed a human chain that slowed the passage (but did not entirely block) all entry and egress from the homes. They also reviled the teachers' families, including parents and children, whenever they left the house. After two days of this, the teachers contacted the local police, who declined to get involved on the grounds that no crimes had been committed.

In its next meeting, the school board passed a resolution holding that all teachers had to sign a pledge. The pledge provided that the teachers had never engaged in gay rights advocacy, were not themselves homosexual, and were not opposed to school prayer. Signing the pledge was made a condition of continued employment in the next academic year. Several teachers refused to sign the pledge on grounds that it invaded their privacy, and violated their rights of free speech and association.

The high school then decided to poll the students to determine whether prayer should be incorporated into the school day. The vote was contentious, and deeply divided the student body. In the end, 52% of the students voted in favor of daily prayer, 46% voted against, and 2% did not vote. One week after the vote, following the morning announcements, a single student read a prayer she had composed. This practice continued daily. Students who wished to lead the prayer were required to submit their prayers to the principal for advance screening and approval. No student was required to join in the prayer, but all were told to stand and bow their heads while the prayer was read over the school's loudspeaker. Students who did not wish to participate could leave for 10 minutes and go to a special "study hall" room, where they would quietly listen to the prayer, but need not stand or bow their heads.

The village council, in a frenzy of village beautification, voted to make funds available to local artists for appropriate murals on the walls of the white stucco city hall building and along the water tower and various other public buildings. Participating artists signed contracts with the village providing that the council would subsidize their labor and materials, so long as their finished works received council approval. The council also enacted an ordinance (to discourage inappropriate use of council art materials) that made it a misdemeanor to create and publicly display pictures that were "profane, obscene, sacrilegious or likely to offend members of the community."

There was no shortage of local artists participating in this project. When the council went forth to inspect the finished works, two murals stood out as particularly memorable. The first was painted by Amy Grant. It showed light shafts piercing clouds and illuminating wheat fields, with the logo "God's chosen place." The council decided to cap Amy's mural with "Stepford" and the village seal. Another muralist, Bart Minor, drew an interesting variation on a Black Hills landscape, in which the curves of the mountains resembled a nude woman, reclining on her back with her breasts and knees raised. His logo: "We don't call them the Grand Tetons for nothing." The Council decided that Bart's entry was likely to offend residents, and formally voted to deem it "not approved." Bart was ordered to repay to the village the monies he had received for his materials and labor. Bart was also charged with violating the new ordinance, which authorized the imposition of fines not to exceed $200 and no more than 30 hours of community service.

An item in the local newspaper indicated that the village council had begun restoring and enhancing the village creche, and that it was certain to be ready in time for Christmas. The creche was traditionally placed in the center of the town square, framed by luminaria (small lanterns placed on the ground leading to the creche) and decorated pine trees. At the entrance to the town square, located about 50 yards from the creche, was a display featuring Santa, a dozen elves, and a reindeer-drawn sleigh full of toys. This display was surrounded by large plastic candy canes.

Even the school prayer proponents at Stepford High were offended when the principal publicly announced that, while the school would continue to pay printer's costs for the student newspaper "Saved by the Light", (an evangelical Christian weekly newsletter distributed free of charge to all students that consisted primarily of personal testimonies and scriptural exegesis), it would no longer fund or even permit students to publish the "Anarchists' Manifesto," a sort of counterculture potpourri that often published student grievances against the administration, guidelines on creating effective computer viruses, and reviews of new CD's with "parental advisory" labels.

Sam Gravely was a popular social studies teacher at Stepford High. Sam had engaged in gay rights advocacy and was opposed to school prayer. Sam decided to organize a student march, protesting the new rules and practices of the school. The students timed the march during home room hour, and walked in single file down the sidewalks surrounding the high school, wearing black lapel ribbons and carrying signs that read "Teach Tolerance" and "God: Save Me From Your Followers". The marchers had alerted the news media in advance, and the press showed up, interviewed students, and took many pictures. That evening, the AP newswire carried a brief report about the march. In the AP story, Sam defended Sarah and admitted that he had briefly worked as a Chippendale dancer in his youth.

The principal and the school board met and decided that a strong response to the march was essential. Sam was fired immediately for "improperly inciting" students to rebel against the administration. No references were made to Sam's work history or morals in order to avoid another defamation case. All students who participated in the march were suspended for three days. Sarah promptly amended her complaint to add a count of gender discrimination.

Discuss and resolve all issues.