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Paper Topic 1 - Racial Profiling
The post-9/11 era has seen renewed debate over the use of racial profiling both as a strategy of criminal law enforcement and as a tactic in the conduct of war. During the Second World War, following the Japanese bombing of Pearl Harbor, concerns over the presence of a "Fifth Column" in the United States led to the internment of persons of Japanese descent residing on the West Coast. That experience has since served as a major reference point in arguments about the legality and propriety of government policies that involve the use of racial or ethnic categories as means towards the end of promoting national security. In peacetime, the legitimacy of racial profiling as a method of ordinary criminal law enforcement has been the subject of recurring disputes in the courts and in the public sphere at large.
There are different forms of racial profiling, just as there are different kinds of argument that can be made for and against its use. In some contexts, it is possible to imagine that race operates as only one factor along with other, non-racial considerations in the practices of law enforcement officers and war planners. In other contexts, the Government may employ strategies that are more or less totally reliant upon racial/ethnic criteria. And just as certain debates about racial profiling revolve around constitutional and ethical concerns, other debates focus more on the practical costs and benefits associated with racial profiling.
What are the strongest arguments you can muster for and against racial profiling? In answering this question, consider a central dilemma of present-day public policy in the United States and many other nations: the use of racial profiling to single out persons of Arab/Muslim descent as suspect terrorists. Would you permit/prohibit such profiling in all circumstances? Only some? What kinds of arguments - constitutional, ethical, practical - would you invoke to defend your conclusions? And do you think that the arguments that have been made about the use of racial profiling in "ordinary" law enforcement pre-9/11 apply in the circumstances of the current "war on terror"?
You need not do any additional reading for this assignment, but your paper should address the following three readings for Lec #6: Korematsu v. United States (1944), Randall Kennedy's "Suspect Policy," and Tunku Varadarajan's "A Feeling of Being Under Suspicion".
Papers should be no more than four pages in length and are due in class in Lec #8.
Paper Topic 2 - The "Intelligent Design" Controversy
A federal court in Pennsylvania has recently ruled on the constitutionality of a local school board decree requiring that "students will be made aware of gaps/problems in Darwin's theory and of other theories of evolution including, but not limited to, intelligent design." (The court found this decree to be unconstitutional, arguing inter alia that intelligent design is a form of creationism in disguise.) For this second paper, I ask you to comment upon the following hypothetical scenario. Imagine that the Massachusetts legislature passes a law requiring all schools in the state to "offer instruction in the principles of Darwinism." The law further instructs the state Board of Education to hold a public hearing to solicit suggestions for recommended readings from educational experts and interested members of the community. At this hearing, the Society for the Promotion of Darwinian Purity, an avowedly atheist group of 800,000 vocal, politically influential Cambridge residents, all of whom defend the sanctity of evolutionary biology, gives a presentation urging the Board of Education to require all students to read Darwin's On the Origin of Species. At the same hearing, the Boston-based Advocates for Intelligent Design, whose membership consists of twelve former MIT students, all of whom failed to graduate as biology majors because they refused on religious grounds to submit themselves to any final examinations, urges the Board to require that Massachusetts students also read Michael Behe's Darwin's Black Box, one of the principal texts of the intelligent design movement.
The Board of Education is persuaded that all students should be required to read Darwin, but concludes that students should also be assigned Behe's text in order to stimulate vigorous debate about the nature and purposes of biology in the schools of the Commonwealth. The Board passes a resolution to this effect. As soon as word of the resolution reaches the Secretary of the Society for the Promotion of Darwinian Purity, that officer galvanizes his membership and stages a vociferous protest rally on the steps of the Statehouse. The members hold up signs proclaiming "Death to Intelligent Design Advocates!" and shout in unison that "Atheism is the Only Acceptable Path to True Enlightenment in the Modern World!" The members call up their state senator, former Harvard President Lawrence Summers, who phones the Chairwoman of the Board of Education and tells her that, as a woman, she has no business trying to determine what constitutes legitimate from illegitimate scientific knowledge. Summers also points out that the Massachusetts statute requiring schools to "offer instruction in the principles of Darwinism" does not permit the teaching of materials that question the postulates of evolutionary biology. The Chairwoman is peeved by Summers but capitulates to the political pressure, confessing to her fellow board members that as an atheist herself "I just wish that all religious people in the Commonwealth would simply leave the state and go fly a kite." The Board proceeds not only to rescind the requirement that Behe's text be taught, but also to direct that his book be removed from all Massachusetts school libraries and barred from any use in the curriculum, on the grounds that Massachusetts has adopted Darwinism as its official state position.
The Advocates for Intelligent Design bring suit in federal court in Boston challenging the constitutionality of the Board's actions under the First Amendment and seeking an injunction requiring the return of Behe's book to the libraries and curriculum of the Commonwealth and the restoration of the Board's resolution to its original form.
Do the Advocates have a case? In answering this question, please consider not only the readings assigned for Lec #8 on the religion clauses of the First Amendment, but also Barnette v. West Virginia Board of Education (1943), from Lec #7. No other readings are required. Your papers should be about four pages in length and are due in class in Lec #12.
Paper Topic 3 - Affirmative Action Brief
The task for Paper 3 involves taking on one of the several roles that lawyers play in our constitutional system. Whereas the first two papers were exercises in analyzing a legal problem from multiple angles, for this third paper I would like to see you all try your hands at a legal brief, which is to say a document that attempts to advance and defend the position of a particular party to a legal dispute. The dispute is the affirmative action debate, and in your brief you should argue either for or against the constitutionality of affirmative action, with reference to the readings for Lec #13.
However, in so doing, please apply your ideas about affirmative action to the following fact pattern. Imagine that Howard University, the historically African-American institution of higher education located in Washington, D.C., is suddenly taken over by the state of Maryland and run as a public university. (The takeover itself you may presume to be constitutional.) In the interests of promoting diversity, the trustees of the new state-run Howard University decide that they will begin giving extra consideration to non-African American candidates for admission, including white (Caucasian candidates). The trustees disclaim any intent to set aside a certain number of places in each year's entering class to non-African American applicants. But they do decide that white applicants, and other non-African American minorities such as Asian Americans and Latino Americans, will receive special consideration, in the context of an individualized consideration of every applicant. Thus, in the new admissions system adopted by the trustees, "whiteness" and other non-African American backgrounds will be taken into account for their value in adding the diversity of the educational experience at Howard.
Is this new policy constitutional? Please draft a legal brief that argues either for or against the policy, with specific reference to (and with citations from) the affirmative action cases we read for Lec #13.
Briefs are due in class in Lec #16, and should be no more than 5 pages, double-spaced, using 12-point Times New Roman font.
For an example of what a legal brief looks like, you may want to consider the amicus brief here. (PDF)
(Do not bother with following the formal citation system and section heading format used in this and all other contemporary legal briefs. A simple reference to the case name and page number will suffice.)
For purposes of Lec #14, please also have a glance at Louis Brandeis's famous brief in Muller v. Oregon (1908). You should not use the Brandeis brief as a model for this assignment because of the page limitations, but the Brandeis brief is a cardinal document in American legal history and worth looking at in its own right. You can find a facsimile of the first part of the brief here, from the Louis Dembitz Brandeis Papers at the University of Louisville, Louis D. Brandeis School of Law Library. (PDF - 1.1 MB)#
Paper Topic 4 - Judicial Opinion on the Gay Marriage Controversy
The fourth and last paper assignment involves the controversy over gay marriage. Like the third paper, your views are to be expressed in the form of a legal document -- in this case, a judicial opinion. The context is straightforward: imagine that the legislature of the fictional state of Ames, which previously allowed gay marriage, changes course and passes a law providing that "marriage in this state shall be defined exclusively as the union of one man and one woman." A lesbian couple married ten years ago under the once-valid, but now repealed, statute authorizing gay marriage files suit in federal district court challenging the new law on federal constitutional grounds. The district court rules in favor of the state, and the United States Court of Appeals having jurisdiction over the state of Ames upholds the trial judge's decision. The plaintiffs file a petition for a writ of certiorari in the Supreme Court, which is granted. You are an associate justice of the Supreme Court. Write a judicial opinion deciding on the merits of the petitioners' appeal. You may assume that you are writing for a majority of the Court, but also that your opinion must be written in such a way as to be able to command the support of at least four other justices.
Your opinion should be no longer than eight double-spaced pages, 12-point Times New Roman font. Rough drafts are due in class in Lec #20.