MBE Tip of the Day: Constitutional Law

Answer to the Constitutional Law MBE Question

Subject: Constitutional Law

Legal Issue: Equal Protection

Legal Rule and Analysis: An equal protection issue is present when the government treats two classes of people differently.  The Equal Protection Clause applies to the federal government through the 5^th Amendment and to state governments through the 14^th Amendment.  The level of scrutiny used to analyze the action depends on the type of class discriminated against as well as the type of right the law is related to.

Strict scrutiny will apply to fundamental rights and classifications based on alienage (by the state), race, or ethnicity.  If the federal government is the one discriminating on the basis of alienage, rational basis will apply.  Further, if the state is discriminating on the basis of alienage when restricting who can perform government functions, rational basis will apply (the political function exception).  These laws will only be deemed unconstitutional if the plaintiff can show that the law bears no rational relation to a legitimate governmental interest.

In this case, the state is the one passing a law that discriminates on the basis of alienage.  Thus, an equal protection challenge is present, and strict scrutiny will apply unless the law is relating to the performance of a political function.  Here, this law is restricting those who are not United State citizens from holding positions as public school teachers.  The United States Supreme Court has already deemed public school teachers to be performing political functions. Ambach v. Norwick, 441 U.S. 68 (1979).  Thus, a state government does not need to meet strict scrutiny in order to pass a law restricting non-citizens from becoming public school teachers.  Rational basis will apply.  Since the Supreme Court has already decided this issue, it is highly likely that the law in question will be deemed constitutional.

Conclusion: The statute will be deemed constitutional because it is rationally related to a legitimate governmental interest.

Look at the answer choices provided. Choose an answer choice that matches your conclusion. Review the other answer choices provided. 

The answer choice (A) is therefore correct. (B) is incorrect this implies the standard being used is intermediate scrutiny, and this is not the proper standard.  (C) is incorrect because not only does it reach the incorrect conclusion regarding constitutionality, but it applies a strict scrutiny standard, which is not appropriate since the political function exception applies.  (D) is incorrect because while the issue of immigration itself is considered to be reserved for the federal government, the states are still free to make statutes that create classifications based on alienage as long as the statute can withstand the requisite level of scrutiny.

MBE Tip: Memorize major Supreme Court decisions and pay attention to recent landmark cases.  The Examiners like to model both MBE and essay questions on existing major opinions or recently decided relevant issues.  Memorizing the past cases that have been critical in shaping our judicial landscape can certainly help you pick up a few points on the bar exam by knowing how the courts apply the rules.  By being familiar with judicial opinions, you’ll be a step ahead on exam day!