Fact Patterns: Instructions

Please read the fact patterns below, and try to spot possible arguments. Note that I
am aware that most of you do not know the law in this area yet, so here are some
tips for approaching the exercise:

(1) For all of these questions, we will be working primarily with arguments that can
be made under the 14th Amendment Equal Protection and Due Process clauses. The
14th Amendment’s text is as follows:

No State shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any State deprive any person of
life, liberty, or property, without due process of law; nor deny to any person within
its jurisdiction the equal protection of the laws.

Relying on the language, consider what arguments might be made that a violation of
14th Amendment rights has occurred.

(2) In several of the fact patterns, I have given you some case law information
(information about how the courts have decided prior cases, which are binding
today). Consider how that information may be relevant to the possible arguments
that can be made – and counter-arguments the government may make.

(3) Please read the summaries on Equal Protection and Due Process and use the
information to help you in answering the questions.

(4) Be creative and don’t be afraid to make arguments that could be wrong!

(5) Consider counter-arguments: we will unpack both the affirmative arguments

that can be made for people harmed by the government, as well as what arguments
the government might raise in response!

(6) Note: The “privileges and immunities” clause (of the 14th Amendment, above),
was effectively gutted by the Supreme Court in the Slaughterhouse Cases (1873).
Therefore, do not focus on this clause in your arguments for the purposes of this
exercise.
Fact Pattern #1

Terry (they/them) is a transgender teenager at a public school in Small Town

Anywhere. They are closeted about their gender identity during their middle school
years, but share their gender identity with their friends and teachers at the start of
high school. Word spreads and they quickly become the subject of targeted
harassment by a group of other students.

Although the harassment starts as verbal harassment, it escalates to physical

harassment, including shoving and being tripped. Terry repeatedly reports
incidents to the administration, but few steps are taken, and the harassment
escalates when the other students are punished. One day, when Terry is using the
boy’s restroom (Terry’s school lacks gender neutral restrooms), the harassment
escalates to physical violence. Terry is punched and shoved by a group of boys, and
has to seek medical assistance.

Although the school generally suspends or expels kids involved in fighting, Terry’s
attackers are only given a warning, and return immediately to class, where they
again start harassing Terry.

When Terry’s mom calls to complain that the school hasn’t done enough to help her
child, she is told by the assistant principal that they are doing their best but “boys
will be boys.” Toward the end of the call, the assistant principal remarks that Terry
“should have expected this in a community like this one” and that the family should
consider moving elsewhere.

If Terry wants to bring an Equal Protection claim against the school, do they
have any possible claim? On what grounds / what arguments? What possible
response(s)?

Now imagine that Terry is a disabled teen, and that the harassment targets
their disability – Would the arguments be the same? Different?

Now imagine, in any of these scenarios, the school generally fails to protect
students from harassment, and has not singled out Terry – Would Terry have a
stronger or weaker claim?

The following additional information may be helpful to thinking through the

arguments from this fact pattern:

(1) The Supreme Court has not yet decided what level of scrutiny should be applied
to LGBTQ discrimination, although it has held in the context of a civil rights statute
(Title VII) that anti-LGBT discrimination is sex discrimination. What arguments
might exist for heightened scrutiny of discrimination against LGBTQ people like
Terry? What arguments might exist under rational basis review?
(2) The Supreme Court has held that discrimination against people with disabilities
only receives rational basis review, and that people with disabilities are not a
suspect or quasi-suspect class – but that actions based on irrational prejudice
against the disabled violate even rational basis review. See City of Cleburne v.
Cleburne Living Center (1985).
Fact Pattern #2

In June 2022, in the case of Dobbs v. Jackson Women’s Health Organization the
Supreme Court overruled Roe v. Wade and Planned Parenthood v. Casey, which had
provided constitutional protections (under the 14 th Amendment Due Process clause
protection for “liberty”) for women seeking abortions. Assume that in early 2023,
Idaho enacts a criminal law banning performing abortions, which does not include
any exemptions of any kind (including for example for the life of the mother). The
law also includes an “aiding and abetting” provision which specifies that those who
“aid or abet” an individual in seeking an abortion, including one performed out of
state, can be criminally prosecuted.

Maria Smith is an Idaho resident with a wanted pregnancy, who is at 14 weeks

gestation when she experiences HELLP, a life-threatening syndrome in which the
pregnant woman experiences, hemolysis (the breaking down of red blood cells),
elevated liver enzymes, and low platelet count. HELLP leads to very serious injury or
death in approximately 25% of women. Maria is unable to find a doctor in Idaho
who is willing to terminate her pregnancy. However, her OBGYN refers her to a
hospital in California that is willing to terminate her pregnancy, and helps get her an
appointment with a doctor there. Her sister helps her to make the travel
arrangements and drives her to and from California. She travels to California, where
she undergoes an abortion. Upon return to Idaho, her OBGYN and sister are charged
under the “aiding and abetting” provision of the statute.

Are there any constitutional provisions or arguments that Maria’s OBGYN and
sister may be able to rely on to argue that Idaho’s statute is unconstitutional,
at least as applied to their conduct?

What counter-arguments may be available to Idaho?

The following additional information may be helpful in formulating your arguments:

1. Under existing doctrine, Maria’s sister and OBGYN are likely to be able to
claim standing to raise Maria’s constitutional rights—that is, if Maria has a
constitutional right to receive an abortion in this circumstance, it is likely that
Maria’s sister and her OBGYN can not be criminally prosecuted for assisting her.
(However, many of these cases were cited unfavorably in Dobbs, although they were
not formally overruled).

2. The Supreme Court has long recognized a “right to travel” between states
under the Fourteenth Amendment, and has held that states must not impose
restrictions or burdens on newcomers that they do not impose on existing residents.
However, states ordinarily can prosecute crimes that take place in part within their
own borders, including aiding or abetting of crimes that take place in another
jurisdiction.
3. While the Supreme Court’s (prior) recognition of a right to abortion focused
on the Due Process clause of the Fourteenth Amendment, some have argued that
bans on abortion should be viewed as an infringement on women’s constitutional
equality rights. The Dobbs case did not include an Equal Protection claim, but
nonetheless rejected (in dicta) the argument made by amici that such a claim might
support a right to abortion. This ruling in Dobbs was based in part on a 1974 case,
Geduldig v. Aiello in which the Supreme Court held that pregnancy discrimination is
not per se sex discrimination.

4. Read the 14th Amendment Due Process clause carefully—Is it possible to

argue that the clause would be violated in this case by criminally prohibiting Maria
from obtaining an abortion, even if there is not a general right to abortion?
HYPOTHETICAL #3

Statistics show that nationwide African American children (both boys and girls) are
more likely to be suspended from school, starting at a young age. Statistical studies
have also shown that such disparities cannot be explained by differences in
behavior alone, and that race still appears to play a strong role even when
controlling for other legitimate factors.

Michael is an African American boy who is in 6th grade when he is suspended for
“defiance.” Michael’s school is predominantly African American, and African
American boys are commonly suspended for discretionary offenses like defiance or
disruptiveness. His mother believes the suspension is discriminatory, and goes to
an attorney to talk about the possibility of a lawsuit.

What would be the arguments that Michael’s suspension violates the Equal
Protection Clause? That the nationwide practice of disproportionally
suspending African American children violates the Equal Protection clause?
What might be the challenges such a lawsuit might face?

Note – the following information/questions may help you in thinking through this
question:

1. The Supreme Court held in the death penalty case of McCleskey v. Kemp, 481
U.S. 279 (1987) that a criminal defendant could not challenge their conviction under
the Equal Protection clause where they could not prove the influence of racial bias
on their own sentence – even where statistics persuasively demonstrated the
overall role of racial bias in the state-wide capital punishment system. How might
McCleskey influence the arguments for the school in this case?

2. If a plaintiff wanted to raise a challenge based on the national statistics, who

would they sue? Who is responsible for the racial discrimination in this context?

3. What challenges might a plaintiff face in alleging racial discrimination at

Michael’s school, specifically?

4. What other measures could be taken to address proven racial disparities, if

constitutional litigation seems likely not to succeed? (Does anyone know what
constitutional arguments are sometimes raised in response to such efforts?)