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DIRECTIONS: The examination is in two parts. Answer the question in Part A and answer one (1) question from Part B. Your total examination script may not exceed 4,000 words. It is important to anticipate and rebut the strongest arguments against the positions that you adopt or for the positions that you reject. There is no need to go outside the assigned readings of the course to write the examination. While you are free to do so, it is not recommended. Examinations should be submitted to your preceptor, as determined (via Canvas or email), no later than 4:00 p.m, May 5, 2021.

PART A

NB: EVERYONE ANSWERS.

Diltz v. Solanco Board of Education

Ezra Diltz is a member of the Amish community in the Township of Solanco, which is in Lancaster County, Pennsylvania. The particular Amish community of which he is a member allows its children to be educated in the local public schools all the way through to high-school graduation. The Amish students then take up their lives as Amish men and women engaged in dairy farming and various crafts. This particular group of Amish has never sought any sort of exemption from the law requiring the education of children through their sixteenth birthdays.

Mr. Diltz and his wife have eight children, six of whom have already graduated from high school and are working the land the Amish have farmed for generations. Their youngest two are a sophomore and junior at the local high school. Mr. Diltz has never had a problem with the education his children have received in the public schools, but in the past few years he has become increasingly concerned with what he views as the “propaganda” that permeates the curriculum. Teachers and assembly speakers frequently speak of same-sex partnerships and transgender identity as things to be affirmed, and on several occasions teachers and speakers have spoken of moral and religious opposition to these things as “bigotry” and “hate.” No teacher or speaker in many years has spoken in defense of beliefs about marriage and sexual morality that correspond to or resemble those of the Amish community, and requests by Amish parents for the school to bring in Ryan Anderson or someone like him to explain and defend

moral precepts more in line with their faith have been flatly rejected by the school’s

administration. “Our task,” school principal Herbert Villard wrote in reply to one request, “is to teach children to affirm diversity, equity, and inclusion; it is not to expose them to out-of-date

ideas that fuel prejudice, hate, and discrimination.”

After failing to persuade school officials of the need to give what he called “a fair hearing” to any viewpoint that is an alternative to the viewpoint advanced in the school, and concerned that the result was the indoctrination of Amish children in an ideology hostile to their faith, Mr. Diltz convinced his Amish community of the need to withdraw their children from the school system at the high-school level. Although the Commonwealth of Pennsylvania has no version of the Religious Freedom Restoration Act [which, in reality, is not the case but to be assumed for purposes of this assignment], Mr. Diltz had confidence in what all Amish view as the enduring strength of Wisconsin v. Yoder. Accordingly, he filed suit in state court seeking an exemption from the matriculation requirement at the high school level. Failure to matriculate one’s children in high school is punishable as a criminal matter. Indeed, Mr. Diltz has been fined for removing his two children from the high school. The trial court denied the exemption; and the appellate court and Pennsylvania Supreme Court affirmed this denial, holding that the Commonwealth has a compelling interest in educating students to be accepting of same-sex sexual relationships and transgender identity.  Mr. Diltz has appealed to the United State Supreme Court.

Pennsylvania and Mr. Diltz have stipulated that the Amish community is too small to support a private school and that parents themselves lack sufficient education to home school their children in a way that would meet the state’s educational standards for home schooled children. If Diltz prevails in the litigation, the Amish children will not continue with formal education, but will remain at home with their parents working and learning in their family businesses.

The Becket Fund for Religious Liberty has filed an amicus curiae brief in the case on behalf of a coalition of orthodox Jewish, Catholic, Evangelical Christian, and Muslim groups who support the Diltz family. The brief asks the Court to use the case to declare that the Solanco high school is in violation of the Due Process and Equal Protection clauses of the Fourteenth Amendment as well as the First Amendment’s prohibition of laws respecting an establishment of religion. Becket’s argument is that the ideology embraced by the school constitutes what John Rawls called a “comprehensive doctrine” which, precisely as such, must be regarded for constitutional purposes as the equivalent of a religion and treated as subject to the same rules against establishment or favoritism.

The United States Supreme Court has granted certiorari. You are the law clerk to Justice Amy Bader Ginsbarrett, and she has asked you to prepare a memorandum analyzing the case.

Justice Ginsbarrett is respectful of precedent, but willing to depart from it when she believes previous decisions were incorrect as a matter of constitutional law. Where she relies on controversial precedents, she believes it to be her duty to say why the precedent should be reaffirmed.

PART B

NB: ANSWER ONE (1) QUESTION ONLY.

  1. Although it is mentioned nowhere in the text of the Constitution, the Supreme Court has, controversially, declared that there is a “right to privacy,” and that it is a fundamental constitutional right. On what ground or grounds does the Court claim to have identified such a

right? Is the claim credible? If not, is there a credible alternative ground for the putative right? If there is no sound basis for it, should the Court reverse course, as it did, for example, with the “right to contract” announced in Lochner v. New York? If so, should the Constitution be amended to introduce a right to privacy that would provide a basis for the Court to review legislation dealing with abortion, marriage, and sexual practices? Or should we return to the older practice of leaving such matters to the democratic process to be resolved legislatively?

Discuss these questions with reference to the relevant cases and materials.

  • It is widely understood that the framers of the Constitution were very concerned about the protection of property rights and economic liberty. Acting on this concern, they wrote a Constitution that created limited federal power over property and economic relations, and they went further, including explicit protections and prohibitions that constrained both federal and state power in that field, in both the original Constitution and subsequent amendments. In what condition do we find those protections and prohibitions today? Has the Court adapted the

Constitution’s protections of property rights to modern circumstances in an appropriate way? Or has it inappropriately depreciated those protections, acquiescing in abuses of property rights that ought not to be permitted?

  • “Race can never be a legitimate factor when government makes decisions at any level, and that includes admission decisions in public universities. The use of race is immoral, racially discriminatory, and a violation of the plain meaning of equal protection found in the Fourteenth Amendment.” Do you agree or disagree? Support your position with reference to the cases and readings used in the course.

Type of service: Academic paper writing
Type of Assignment: Essay
Subject: Law
Pages/words: 14/3850
Number of sources: 0
Academic level: Doctoral
Paper format: MLA
Line spacing: Double
Language style: US English