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-- N.J., April 11, 2003

The first issue is whether Mr. Garcia has standing to bring the lawsuit. Clearly, he does. He's U.S. citizen, a taxpayer, and has suffered an injury. The fact that he's a U.S. citizen also means he's protected by the Constitution and all laws.

Did Congress have power to amend Title 42, Section 1983? If you agree with Sen. Grassley it's a tricky issue because he's implying Congress created a new "substantive" right. Given the facts, its unclear if there is any judicially created right Congress is enforcing or providing a remedy for. Or a right under the Constitution, such as equal protection of the laws under the 14th Amendment. If Congress is just ensuring equal protection, that is arguably remedial. However, the 14th Amendment is directed at state action or those acting under the color of state law. (Guest) The state action need not be direct or exclusive. Therefore, a substantial amount of private action can be reached.

If Congress is simply trying to reach all possible discrimination in schooling, they are only expanding upon rights the Constitution provides. In addition, in Runyon the court said that Sec. 1981 prohibits private schools from denying admission based on race and that Sec. 1981 is constitutional. Sec. 1981 says that all persons shall have the same rights to make and enforce contracts. That speaks directly to the issue in this case and I'll come back to it later. The Voting Rights cases did a lot to explain Congress' right to make laws. Any rational means to combat an evil perceived by Congress is allowed -- so long as the Court can perceive a basis upon which Congress acted as they did. (Katzenbach) If Congress believed that additional protection was needed for schools, the Court will allow it as a "remedial power." If indeed it has created new right, therefore substantive, the amendment will more likely be struck down. However, there are no cases on this. It's argued that Katzenbach & Oregon v. Mitchell & South Carolina v. Katenzebach are substantive because of the courts ruling in Lassiter which had found literacy tests okay. Court upheld the Voting Rights Act of 1965 even in light of their decision in Lassiter. Because literacy tests per se are mentioned in the 15th Amendment, only voting, it can be argued that Congress created a new, substantive right.

Is the "Bright Kids Nursery School" covered under Sec. 1983b? Assuming it is an AEEA-funded school, its covered by Sec. 1983(b) because its acting under color of law. It receives either 90% or 40% funding from the state, depending on if it's private or not. Either way, it's a substantial portion of the operating budget. Even if Sec. 1983(b) isn't a valid exercise of Congress' power, Mr. Garcia may still have redress under Sec. 1983(a) or the 14th Amendment. Since education is typically a state function, even if the Nursery is private it is still acting under color of law because its performing state functions (Burton case). Under the 14th Amendment, he'd have an equal protection claim. Either way -- with or without Sec. 1983(b) --  Mr. Garcia has a claim.

Did the nursery have the right to deny Mr. Garcia's child admission? Under Sec. 1983(a), the nursery doesn't have the right. They act under color of law and have denied a person of her rights, privileges and immunities secured by the Constitution and laws.

Also, the nursery has no right to deny admission based on racial discrimination based on 42 U.S.C. 1981. (Runyon). The dissent raises in interesting argument about the rights of association and peoples choice to form associational relationships of their choosing. Given that and the rights in Sec. 1981, they are somewhat in conflict and will call for careful policy consideration if a conflict arises. That job is for the legislature, not the judiciary.

Is there are 13th Amendment claim? Jones v. Mayer held that 42 U.S.C. 1982 bars all racial discrimination both public and private in the sale or rental of power. Sec 1982 gets this power from the 13th Amendment. Congress has the power to determine "badges and incidents" of slavery and translate that into legislation. You could argue that if they don't have the power in regards to property they should also have power in regards to schooling. In Runyan, the court recognized racial discrimination in schooling as a problem. Should be able to justify using the 13th Amendment to eradicate the problem.

There is also the issue of how far the 13th Amendment reaches to other minority groups besides blacks. In McDonald v. Santa Fe the court suggested that congressional power under the 13th can be worked to curb discrimination against whites. There is obviously discriminatory intent by the nursery against persons of Colombian ancestry. Surely, that can be described as a "badge or incident" of slavery. Its not isolated because the nursery director made a policy statement that they didn't "accept girls of Colombian ancestry" not just an isolated attempt to keep Maria out.

Also, the 13th is not limited to State action like the 14th. So, wouldn't have the issue of reaching the nursery. The Civil Rights Cases lay out the boundaries of the 13th: "an absolute declaration that slavery or involuntary servitude shall not exist in any part of the U.S."

Is there a 14th Amendment claim? Easier to make if we prove the nursery a state actor. The Guest case extended 14th Amendment reach to cover some private behavior. I think the State funding provides the necessary link to the 14th. Provides some state action in dispersing the funds to the nursery.

In summary, Mr. Garcia has several claims which can be made in the alternative:

1) The nursery violated his rights under 42 U.S.C. 1983 because the nursery operates under color of law.

2) If Sec. 1983(b) is found to be an unconstitutional exercise of Congress' power, then Mr. Garcia has a claim under Sec. 1981 and the Runyon decision.

3) If that fails, can try the 13th Amendment or use the 13th as a justification for Congress enacting Sec. 1983(b). If the 13th Amendment is too much of a stretch can rely on

4) The 14th Amendment. Either use the Guest case to find a state connection to reach the nursery or find the nursery operates under color of state law. Make a claim of equal protection to use the 14th to link to the 1st Amendment rights to assemble. Also, the "no state shall make any law" can be used if we find out the reason Maria was denied admission. Is it a state guideline or simply a guideline only by this specific nursery.

Even if we had access to the question this student has answered it would not be the purpose if this commentary to analyze the legal issues, or critique the job the student did on the substance. Obviously, whatever this question was is not going to be used on your exam.

So I will limit my comments to a few brief observations.

We don't have my scoring matrix for this, so we can't know how many issues I was looking for and, of those, how many this student addressed. But as I've mentioned, I often grade exams at least twice: once with a gestalt read and evaluation, and then with a detailed matrix (of issues) analysis. This paper scores well in a gestalt once-over. As you're reading it you quickly form the impression that this student knows the material, has a good analytical mind, can write well, and seems to have spotted a lot of issues.

Note the number and bredth of issues this student has selected. In a grading system in which "spotting the issue" is a major part of the grade, and the professor thinks there are dozens of issues, this student should do pretty well.

The discussion of those issues is relatively well organized and presented.

Note the length of the answer. No, we don't throw the papers down the stairs and give the highest grade to the one that goes the furthest. We don't grade on the basis of points-per-word. But there's not a lot of padding, or excess verbiage, here. There's just a very good use of the hour devoted to crafting this rather thorough answer.

There is here a relatively impressive use of materials, with the interwoven reference, and application, of court decisions, constitutional provisions and statutes, the ability to draw analogies from cases to the facts in the question. The student is not simply reciting back a string of black letter law rules.

Note the writing; the complete sentences. Moreover, believe it or not -- given the length of the answer -- the handwriting was also very legible and easy to read (and for Ms. Bruce to keystroke). That's kind of a no-brainer, but often forgotten by students: If I can't read what you've written I can't give you credit for it.

Summary conclusions certainly aren't necessary at the end of an essay question answer, but it is kind of a nice touch with this paper.

I may try to get some links to some other professors' constitutional law questions and answers out on the Web posted here at some point, and maybe an example of (a) an essay question, (b) grading matrix, and (c) a good and not-so-good student answer from a more recent exam of mine in a course other than constitutional law.