Miami



2020 EXAM BANK

QUESTION TYPE 1: OPINION/DISSENT

Question Type 1 asks you to play the role of a court and write drafts of the analysis sections of a judicial opinion and a shorter dissent. This question is designed for you to be able to demonstrate depth by allowing you to apply policy and theory to a narrow question framed as an appellate case. I put a high premium on sticking to the question presented. For some specific ideas about writing these, see slides at the end of Class #10.

Fall 1997 Opinion/Dissent Q (2020 Sample Q1A)

Alexandra was an accountant who was partially paralyzed and used a wheelchair. After she was made a partner at a prestigious accounting firm, she decided to purchase a townhouse. She began looking at advertisements for upscale townhouses each day in the real estate section of the local newspapers. Over the course of several weeks, she was annoyed to see that that all of the models in these ads seemed to be in perfect physical condition and none showed the slightest indication of any disability, let alone a wheelchair. She was particularly distressed by a series of ads run by Bialek Builders, the owners of several large townhouse developments. These ads appeared daily for several weeks in two different newspapers, each showing many smiling people of all ages and races. Although the ad campaign used different models each day, almost all the models either were walking down long staircases or were engaged in sports activities like tennis, bicycling, or jogging.

After consulting an attorney, Alexandra sued Bialek Builders in federal court. Her complaint alleged that the ads violated 42 U.S.C. §3604(c) by indicating that persons with mobility-related disabilities were not welcome at the townhouse developments. After a bench trial, the court ruled for the defendant. It held that, as a matter of law, the mere failure to use models with handicaps cannot violate §3604(c) because the use of able-bodied models does not “indicate a preference” for people without handicaps. The court also ruled in the alternative that, even if there was a cause of action for failure to include models with handicaps, the Bialek Builders ad campaign itself did not violate the statute. The court found as fact that ordinary readers in the surrounding area were not accustomed to seeing pictures of people with handicaps in any form of advertising, and thus they would not view the pictures as making any statement at all about whether people with handicaps were welcome at the townhouses. The court found irrelevant Alexandra’s testimony about her own reactions to the ads, saying that she was not an “ordinary reader.”

FALL 1997 QUESTION CONTINUES ON THE NEXT PAGE

Fall 1997 Question (Continued)

The Court of Appeals reversed both rulings. It first held that the cases finding the use of selected human models to be race discrimination apply equally to discrimination on the basis of handicap. It then held that the proper standard for judging the ad campaign was the way it would be viewed “by an ordinary reader of the protected class in question.” The court remanded the case for reconsideration under that standard. Defendants petitioned for certiorari. The U.S. Supreme Court granted the petition for certiorari to resolve two issues:

1) Can the failure to include models who appear to have disabilities in advertising regarding the sale or rental of housing ever violate 42 U.S.C. §3604(c)?

2) Is the appropriate standard for evaluating claims under §3604(c) the perceptions of “the ordinary reader of the protected class in question”?

Compose drafts of the analysis sections of a majority opinion and of a shorter dissent for the U.S. Supreme Court deciding this question in the context of the facts of this case. Frame your answer so that the majority disagrees with the dissent n both questions.

Spring 2011 Opinion/Dissent QIA (2020 Review Problem 2A)

In 2013, for the first time, intelligent beings from another solar system travelled to Earth. The Lilistines, as they called themselves, originated on a planet circling the star Rigel, and had been engaging in inter-stellar travel for several centuries. After making contact with humans, they entered trade agreements with a number of nations on Earth and began doing extensive business here, especially with the U.S. and with China. By 2025, more than 400,000 Lilistines lived on Earth, engaging in commerce or sharing scientific and industrial techniques with humans.

Lilistines are shaped remarkably like humans, except that they ordinarily have two arms on each side of their body and seven fingers on each of their four hands. Their natural skin tones are various shades of blue and green, which some humans find beautiful and others find repulsive. Humans also were divided, particularly in the U.S., about whether it was desirable to have “aliens” living among us.

In 2025, some Lilistines who particularly enjoyed living here applied to be citizens of nations on Earth. In the U.S., the citizenship issue was very controversial. On the one hand, American business interests worried about losing trade opportunities to China and to the European Union nations, which all allowed Lilistines to become citizens. On the other hand, many Americans did not want greater contact with the Lilistines and worried about losing jobs to the technically-sophisticated “aliens.” Some more extreme “Human First” groups developed anti-alien slogans like,

Red, brown, yellow, black or white, any of these can be all right.

Skin that’s blue or skin that’s green will not do; it is obscene.

Congressional leaders drafted and passed a compromise bill that allowed Lilistines to become U.S. citizens, but explicitly excluded them from protection under Title VII and the Fair Housing Act. Senator Catherine Garcia, one of the sponsors of the bill, said during the debate that “Our bill protects U.S. economic interests, while allowing individual Americans to decide for themselves whether they want to hire or live with non-humans.” The bill made no mention of the Civil Rights Act of 1866. The President signed the bill into law early in 2026.

SPRING 2011 QUESTION IA CONTINUES ON THE NEXT PAGE

Spring 2011 Question IA (Continued)

Late in 2026, a Lilistine salesperson named E’rin-T’ron became a U.S. citizen. Subsequently, E’rin-T’ron applied to rent a penthouse apartment in a building owned by Amanda Allenbaum. Amanda refused to accept the application, saying she never would rent to a Lilistine.

E’rin-T’ron sued Amanda in federal court claiming the refusal violated 42 U.S.C. §1982. The trial court granted Amanda’s motion to dismiss for failure to state a claim, holding that discrimination against Lilistines is not covered by the Civil Rights Act of 1866. The court noted that the 1866 Congress “obviously did not contemplate protecting entities from other galaxies” and that the 2025 Congress intended to prevent Lilistines from bringing federal anti-discrimination lawsuits.

The court of appeals reversed, arguing that discrimination against Lilistines seemed “frighteningly” like race discrimination against humans. The court also pointed out that although the citizenship bill had prohibited claims under Title VII and the FHA, the failure to mention the Civil Rights Act of 1866 suggested that Congress did not intend to prohibit lawsuits arising under §1982.

Amanda petitioned for certiorari. The U.S. Supreme Court granted the petition to determine if a cause of action for discrimination against Lilistines was available under §1982.

Compose drafts of the analysis sections of a majority opinion and of a shorter dissent for the U.S. Supreme Court deciding this question in the context of the facts of this case.

2011 Fall Opinion/Dissent Q

[Fall 2020: We did not cover the benign discrimination cases, so you will not be able to write an answer for this Q. Of the many opinion dissent targeting legal issues outside our version of the course, it is probably the easiest for you to follow. You will be able to use the best student answers as samples of strong student work.]

The Jewish and Muslim Integration Experiment (JAMIE) is a non-profit corporation founded by some leaders of interfaith organizations. JAMIE purchased newly built apartment complexes in several U.S. cities and resold individual units as condominiums. To encourage religious Jews and Muslims to live together in these complexes, JAMIE requires that owners agree not to use any meat forbidden by Jewish Kosher rules or by Muslim Sharia law.[1] When selling units, so long as purchasers agree to abide by the rules about food, JAMIE does not discriminate on the basis of religion or any other characteristic protected by the FHA.

To help market these condominiums, JAMIE has run advertising in major metropolitan newspapers as well as periodicals targeting Orthodox Jews and Muslims (some of which are in Yiddish or Arabic). JAMIE’s ads explain the food restrictions and note that it is designed to create spaces in which Jews, Muslims and others can live together comfortably.

HUD sued in federal district court, alleging that JAMIE’s ads indicate (to an “ordinary reader”) a preference for Jews and Muslims in violation of 42 U.S.C. §3604(c). The trial court dismissed the suit, arguing that JAMIE’s housing program clearly furthered the purposes of the FHA. Thus, it held that, if JAMIE’s ads accurately describing the rules and arguably targeting Jews and Muslims were “discriminatory” at all, they should be considered “benign” and not in violation of §3604(c).

The court of appeals reversed, holding that, however well-intentioned JAMIE’s programming, §3604(c) still obligated JAMIE to advertise in a non-discriminatory way. It thus remanded the case for the trial court to determine whether the advertising campaign or any of the individual ads violated the “ordinary reader” test.

2011 FALL OPINION/DISSENT Q CONTINUES ON THE NEXT PAGE

2011 Fall Opinion/Dissent Q (Continued)

The U.S. Supreme Court granted JAMIE’s petition for certiorari to address the following question: “When, if ever, can ‘benign discrimination’ be a defense to a §3604(c) claim?” Compose drafts of the analysis sections of a majority opinion for the Court, and of a shorter dissent, answering this question in the context of the facts of this case. Assume that there is no evidence that JAMIE ever violated §3604(a) or that the ads were false or misleading.

2012 Spring Opinion/Dissent Q (Sample Q1B)

Brett Benjamin, an African-American college student, entered into a three-year lease on a two-bedroom apartment near his college campus. After a few months, when money got tight, he advertised for a roommate through an online service. The ad contained no references to Brett’s race or to any racial preference regarding prospective roommates.

Jason Johnson answered the ad via e-mail and Brett and Jason had an extensive e-mail exchange about the possibility of living together. Brett was very pleased to discover that Jason attended the same college, shared his taste in music, movies, and TV shows, and shared his belief that it is very important for roommates both to keep common areas neat and to always have chocolate chip cookies in the house. The two young men agreed that they were probably a good fit and arranged for Jason to come see the apartment.

When Brett answered the door and saw Jason’s pale freckled face for the first time, he blurted out, “Oh, man, you’re White.” Jason grinned and said, “Very true, bro.” Brett then said, “I really don’t think I can do this,” and closed the door. He later sent Jason an e-mail saying that he was sorry, but he’d found a different roommate.

Jason brought an action in Federal District Court alleging the information provided above and claiming that Brett’s refusal to accept him as a roommate violated 42 U.S.C. §1982. Brett moved to dismiss the case for failure to state a claim. The District Court granted the motion, arguing that ’s reasoning regarding the FHA also applies to §1982.

Jason appealed, and the Court of Appeals reversed. In the majority opinion, two of the judges noted that reached the result it did by narrowly reading the word “dwelling” in the FHA but, by contrast, the broad language of §1982 clearly covers the selection of roommates. They argued that since Congress created no exceptions at all to §1982, it would be inappropriate for a court to allow an exception here. The majority thus remanded the case to the District Court for a trial on the merits.

2012 SPRING QUESTION CONTINUES ON THE NEXT PAGE

2012 Spring Question (Continued)

The third Court of Appeals judge concurred in the result, but would have distinguished on the grounds that race discrimination should be treated differently from discrimination based on sex or familial status. This judge argued that race does not implicate the same privacy concerns and that the prevention of race discrimination is a more important state interest.

Brett petitioned for certiorari. The U.S. Supreme Court granted the petition to determine whether the refusal to accept a potential paying roommate because of race violates §1982. Compose drafts of the analysis sections of a majority opinion and of a shorter dissent for the U.S. Supreme Court deciding this question in the context of the facts of this case.

Assume that discrimination by an African-American against a White person is generally actionable under §1982. Assume that the question of whether forcing Brett to accept Jason as a roommate would violate the U.S. Constitution is not properly before the Supreme Court.

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[1] This primarily means no use of pork or shellfish.

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