Final Examination

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 sheet.

DIRECTIONS

1. This examination is "open universe." You may use any supplemental materials you wish. There are, however, two caveats:

A. If you quote directly from any supplemental source, you must cite your source.

B. You may not discuss this examination with any other person, either while you are taking it or after you have handed it in. This prohibition will remain in effect until the end of the examination period, i.e. May 12, 1995.

2. Twenty four hours will be allotted for the examination. If the examination and your response is not returned within twenty four hours, your grade will be reduced by two (2) letter grades.

3. In answering the essay questions, you should rely upon case law from the class materials and our class

discussions. Outside research is neither expected nor rewarded.

4. DO NOT CITE A CASE WITHOUT FURTHER DISCUSSION! 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.

5. Your answer must be typewritten. If you use a computer, you may edit and revise your answer freely during the twenty- four hour exam period.

GOOD LUCK!

QUESTION ONE:

One fall morning in Hadley County, Tennessee, an eighth grader named Jennifer Frost approached her mother with a question about homework. She was reading a story entitled "A Visit to Mars," in her basal reading textbook, which was published by Holt, Rinehart & Co. Jennifer was confused by references to imaginary Martians in the story, who were described as having telepathic powers.

Jennifer's mother, Vicki Frost, read the story and was horrified. Vicki and her husband were fundamentalist Christians, and considered telepathy a demonic skill. Vicki examined her daughter's textbook closely, and found numerous other stories that demonstrated to her satisfaction that her children were being inculcated with demonology, witchcraft, feminism and other objectionable matters.

Vicki raised the textbook problem with several neighbors and with her minister, all of whom agreed to join her in a meeting with the school board. At the meeting, the parents aired their concerns and demanded that new textbooks be chosen for their children. After some heated discussion, the board announced that it could not afford to purchase new textbooks, and that the parents' objections would be "noted" and considered in future years. (The Holt Rinehart book was part of a basal reading series used in grades K-8 to teach reading comprehension skills).

To protest the board's decision, Vicki Frost and several other parents began to come into the school at the appointed hour for reading classes. They would remove their children from these classes with a flourish, announcing that THEIR children were not to be "poisoned" by reading "evil and twisted" stories. When the reading teachers informed the principal of this practice, the principal told the parents that if they continued to remove their children from school during the school day, he would report them to the authorities and recommend that they be prosecuted under Tennessee's compulsory school attendance statute. The parents then removed their children from school entirely, and the local prosecutors office filed charges against the parents in state court. Violation of Tennessee's compulsory education statute is a 2nd degree criminal misdemeanor, with penalities ranging from $1,000 to 30 days in jail.

At this point, the parents obtained legal counsel, and filed a §1983 suit in federal court against the school board, the principal, Hadley County, the Tennessee State Board of Regents

(which had recommended, approved and paid for the textbooks) and the State of Tennessee. The plaintiffs consisted of three groups: the Frosts and two other parents of school age children in the Hadley County school system, two local ministers and a conservative political action organization called Concerned Women for America. The plaintiffs claimed that the defendants had violated their free exercise rights and estabished the religion of secular humanism and/ or satanism in the public schools by requiring their children to read the Holt Rinehart books. While this litigation was pending, Jennifer, who was the Frost's only child, graduated from eighth grade.

The plaintiffs filed a motion in federal court to stay the criminal proceedings pending against them in state court, pending resolution of their federal constitutional claims. Defendants filed an array of motions for summary judgment, relying on, inter alia, the 11th amendment, immunity defenses, abstention, and lack of justiciability. Defendants also challenged plaintiff's ability to prove the required elements of a § 1983 claim.

How should the district court resolve these pending motions? Discuss and resolve all legal issues focusing on their application to individual parties. (You may assume that plaintiff's constitutional claims are sufficient to withstand summary judgment, and thus need not discuss the merits of plaintiff's constitutional claims.)

QUESTION TWO:

As part of the GOP's "Contract with America," a freshman Congressman from Pennsylvania slipped a little- noticed provision into the GOP's tax reduction act, which provided as follows:

12 U.S.C. §1367(a) is hereby amended to add the following sentence to the end of that provision: "State claims brought against state officers pursuant to this act shall not be subject to the eleventh amendment."

This bill was then enacted by both Houses of Congress. Discuss (a) how the current Supreme Court might interpret such an amendment to §1367 in light of Pennhurst, Will, and U.S. v. Klein. (b) Predict the individual response of the Justice whose opinions you were responsible for this semester.