Law 790 - Religion and the Constitution

Final Examination

Professor Harpaz

May 3, 2004

Question I

(Suggested time: 60 minutes) (50 points out of 150 total exam points)

            Springdale High School, a public high school within the Springdale School District, recognizes about 30 different non-curriculum related student clubs. The clubs are permitted to meet in school classrooms immediately after the end of the school day. The club program complies in all ways with the requirements of the Federal Equal Access Act as interpreted and upheld in Board of Education of the Westside Community Schools v. Mergens.

            Among the student clubs that exist at Springdale High School are the Christian Club, the Ski Club, Students Against Drunk Driving, the Drama Club, the Young Democrats, the Young Republicans, Students Against Guns, the Gay/Straight Alliance, and the Community Service Club. In addition to meeting in classrooms, the clubs also are entitled to post notices on a Student Club Bulletin Board, have their picture in the school yearbook, and participate in an annual Club Fair at which clubs distribute literature and attempt to sign up new members.

            Several months ago, Springdale High School received a School Beautification Grant in the amount of $500 from the Springdale School District. Evan Edwards, the high school principal, decided to use the grant money to beautify the drab central hallway of the high school building. He has initiated a project to design and paint a mural on the walls of the hallway. The hallway extends throughout the first floor of the school building and is used by all students at the school throughout the school day to move between classrooms. The administrative offices of the school are also off of the central hallway.

            In order to involve students in the design and painting of the mural, Principal Edwards announced that each of the 30 recognized student clubs could submit a design for a section of the mural. Once approved by the principal, the club design would be painted on the hallway by club members with the assistance of several of the school’s art teachers. The school would provide paint and other supplies required for the project. Each club’s portion of the mural would be labeled with a small plaque that stated that it was designed by the members of the particular club along with the date when it was completed.

            All 30 student clubs submitted designs. The Christian Club design includes a heart, two doves and a Bible open to a part of the New Testament. On the pages of the Bible can be read the words “For God so loved the world, that he gave his only begotten Son, that whosoever believeth in him should not perish, but have everlasting life. (John 3:16) (King James Version).” In addition to the Bible verse, the design includes a large cross that dominates the design.


            The principal reviewed each club design. After reviewing the Christian Club design he contacted the lawyer for the school district. In consultation with the school district lawyer, Mr. Edwards concluded that he would approve all of the design except for the large cross. He informed the members of the club that he could not allow their design to include a cross because to allow the cross would violate the Establishment Clause. The club members protested Mr. Edward’s decision, but he refused to reconsider. He approved the designs submitted by each of the other clubs in their entirety. None of the other designs contain religious symbols.

            The painting of the mural is now almost complete. Two lawsuits have now been filed in federal district court to challenge the mural. The defendants in both cases are the Springdale School District, the Springdale High School, and Evan Edwards in his capacity as Principal of Springdale High School. The suits are being defended by the Springdale School District on behalf of all of the defendants. The first suit was filed by several students who are members of the Christian Club to challenge the exclusion of the cross from their proposed mural design. Their lawsuit argues that Principal Edwards has violated the club’s rights under the Free Speech Clause of the First Amendment by engaging in content-based censorship of student speech in a public forum. The School District has defended on Establishment Clause grounds.

            The second lawsuit was filed by Amanda Anderson, a resident of the City of Springdale. Ms. Anderson owns a home in the city and pays property taxes that help support the Springdale School District. She has no children who attend Springdale High School and has never visited the school building. She learned of the proposed mural at a dinner party she attended recently. She is a strong believer in a strict separation of church and state. This belief motivated her decision to file suit to challenge the constitutionality of the mural. Her lawsuit argues that the inclusion of the Bible verse in the central hallway mural violates the Establishment Clause.

            The two lawsuits have now been consolidated before a single federal district court judge. You are a law clerk to the judge hearing the case. The judge has asked you to write a memorandum of law detailing the First Amendment arguments that can be raised by the plaintiffs in each of the two cases and by the School District in defending against each of the lawsuits.


Question II

(Suggested time: 60 minutes) (50 points out of 150 total exam points)

            Barry Borden is a lawyer licensed to practice in the State of Northeast. Mr. Borden is the senior partner in a small law firm located in the City of Northfield, a city in Northeast. Mr. Borden is a member of the Church of Materialism. The church has existed for 10 years and has 75 members who all live in Northeast. The members of the church believe in a divine force that helps them to achieve wealth and, therefore, happiness during their lifetime. They believe in an afterlife in which rich people ascend to heaven and poor people descend to hell. Church members reject Biblical teachings that urge the rich to give up their material possessions to enter heaven. Instead they believe that acquiring as much material wealth during one’s lifetime as possible is the true path to heaven.

            Last year the State of Northeast adopted a mandatory pro bono requirement for lawyers who are licensed to practice in the state. The state initiated the requirement because indigent persons in the state have a critical and unmet need for legal services. Under the terms of the program, each licensed attorney must provide 12 hours of free legal assistance to indigent persons in need of legal services. The services must be provided by each lawyer personally. The requirement cannot, for example, be satisfied by hours donated by junior associates on behalf of a senior partner in a law firm. Lawyers who do not satisfy the mandatory pro bono requirement will lose their license to practice law in the state.

            The mandatory pro bono requirement may be waived in cases of hardship. Lawyers seeking hardship exemptions must petition the Board of Bar Overseers. Hardship is narrowly defined to include a physical infirmity which makes it impossible for a lawyer to comply with the requirement in a particular year. Hardship exemptions will not be granted because of absence from the jurisdiction or economic hardship. Lawyers who obtain a hardship exemption in a particular year are required to make up for the 12 hours they did not provide in that year in a subsequent year. The state adopted a very narrow hardship exemption to make clear to lawyers that the practice of law is a service profession and not simply a way to make a living.

             Barry Borden has refused to comply with the mandatory bro bono requirement. The Board of Bar Overseers has threatened to take away his license to practice law in Northeast. Mr. Borden has filed a lawsuit challenging the constitutionality of the mandatory pro bono requirement as applied to him. He argues that the requirement violates his rights under the First Amendment’s Free Exercise Clause. Mr. Borden asserts that it would be a violation of the tenets of his faith as a member of the Church of Materialism to donate his legal services to fulfill his mandatory pro bono obligation. Affidavits from 10 other church members support his claim. To further support his claim he has introduced evidence of his religious beliefs as a member of the Church of Materialism.

            The evidence includes the fact that the church symbol is the dollar sign and the church holds weekly worship services. These services include worship at the alter of materialism as well as the worship of living saints who include Donald Trump, Bill Gates and Oprah Winfrey, among others. Members of the church ascend to higher levels of salvation as they acquire additional wealth. The leader of the congregation is always the member with the greatest amount of wealth. The church promotes a lifestyle of conspicuous consumption. The tenets of the Church of Materialism include the following beliefs: (1) It is easier for a camel to go through the eye of a needle than for a poor man to enter heaven; (2) Money is the root of all good; (3) Charity begins and ends at home; (3) Better a rich man than a beggarman be; (4) Eternal salvation is through working to acquire wealth; and (5) Money should not be shared with those less fortunate. Church members believe that poor people are sinners and that the poor should never accept charity because the only path to salvation for the poor is for them to work hard to raise themselves out of poverty.

            You are a law clerk to the judge assigned to Mr. Borden’s case. The judge has asked you to write a memorandum of law discussing the Free Exercise arguments available to Mr. Borden in challenging the application of the mandatory pro bono requirement as applied to him as well as the arguments available to the Board of Bar Overseers to defend against those arguments.


Question III

(Suggested time: 60 minutes) (50 points out of 150 total exam points)

            The State of Southwest is concerned about its system of elementary and secondary public schools. Many of its schools are failing to adequately educate the students who attend them. In addition, many of the schools are overcrowded and the school buildings are in need of repair and replacement of antiquated equipment. The State has attempted to embark on a multifaceted solution to its problems. It is attempting to fund a gradual program of repair and upgrading of school facilities. It is attempting to hire better qualified teachers. It is revising its curriculum.

            One additional part of its program to improve educational opportunities is designed to both relieve overcrowding in the public schools and to provide more students with a private school option. To achieve these objectives, the State created and funded the School Choice Scholarship Fund (the Fund or SCSF). Beginning in 2002-03, money from the Fund was allocated on an annual basis to all licensed private schools, both secular and sectarian, within the State who admit qualifying students. A qualifying student is one who attended public school in the previous academic year and who seeks enrollment in grades 2 through 10 in a licensed private school within the State of Southwest.

            Once a private school receives notification of the amount of its annual allocation from SCSF, it may then award those funds in the form of tuition remission scholarships to qualifying students up to the amount of tuition and fees at the school. Upon the enrollment of a qualified student who has been awarded a tuition remission scholarship from the school’s Fund allocation, the private school is eligible to receive money from the Fund to reimburse the school for the amount of the scholarship. Allocated money that a school does not request as reimbursement for scholarship expenditures in the year in which it is allocated shall be forfeited by the school.

            Under the program, each October schools report the number of qualifying students they have enrolled. Based on those numbers, in January each school receives notification of its annual Fund allocation. For each enrolled qualifying student in the current academic year, the school will receive $3000 it may award in tuition remission scholarships for students who will matriculate in the next academic year. While $3000 is the per student amount used to calculate each school’s annual allocation, it does not limit the size of the scholarships awarded by the school. The only limitation on the amount of an award to an individual qualified student who attended public school in the previous academic year is the amount of tuition and fees at the school making the award.

            As an example, if a school enrolls 10 qualifying students in the 2003-04 academic year, it will be allocated $30,000 from the Fund to award to qualifying students who matriculate in the 2004-05 academic year. The school is free to decide how to divide that $30,000 among the tuition remission scholarships it offers to qualifying applicants. Its allocation in 2004-05 will once again be based on the total number of qualifying students it enrolls without regard to whether and in what amounts those students received tuition remission scholarships from the school’s SCSF allocation.


            Money from the Fund was allocated for the first time in 2002-03 based on enrollment data listing qualifying students provided by each licensed private school in October, 2002. Private schools within the State were allocated a total of $5 million from the Fund in January, 2003. Eighty percent of the Fund money was allocated to sectarian schools and 20 percent to nonsectarian schools. Those percentages are consistent with the ratio of licensed sectarian to nonsectarian private schools within the State.

            The first students to benefit from Fund allocations matriculated in the fall of 2003-04. Of the $5 million that was allocated, the State received $3 million in reimbursement requests from schools that had been allocated Fund money. Eighty-five percent of the reimbursement requests were from sectarian schools and 15 percent were from nonsectarian schools. Based on enrollment data provided in October, 2003, the Fund allocated $8 million in January, 2004. Those allocations provided sectarian schools with 90 percent of the allocated Fund money.

            Margaret Miller is a state taxpayer who resides in Southwest. She has filed suit in federal court to challenge the practice of allowing sectarian schools to receive money from the School Choice Scholarship Fund as violative of the Establishment Clause of the U.S. Constitution.

            You are a law clerk to the judge assigned to the case. The judge asks you to write a memorandum of law detailing the Establishment Clause arguments that can be made by Margaret Miller in challenging the inclusion of sectarian schools in the SCSF program and the arguments that can be made by the State in defending this practice against an Establishment Clause attack.