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MCLE Test and Answer Sheet

Test No. 60: An Indiscriminate Measure (March 1998 LA Lawyer)

Instructions for Obtaining MCLE Credits
1.Study the CLE article in this issue.

2.Answer the test questions by marking the appropriate boxes. Each question has only one answer. Photocopies of this answer sheet may be submitted; however, this form should not be enlarged or reduced.

3.Mail the answer sheet and the $15 testing fee ($20 for non-LACBA members) to:
Los Angeles Lawyer
P.O. Box 55020
Los Angeles, CA 90055 
Make checks payable to Los Angeles Lawyer.

4.You can also fill in the test form and submit it directly to LACBA by clicking "Submit." To submit your test answers online you will need to pay by credit card. After submitting your answers you will be presented with a screen requesting payment information. This information will be submitted in a secure mode which will allow you to safely transmit your credit card number over the Internet. If you prefer not to pay by credit card, please print this answer sheet and submit your responses by regular mail.

5.Within six weeks, Los Angeles Lawyer will return your test with the correct answers, a rationale for the correct answers, and a certificate verifying the CLE credit you earned through this self-assessment activity.

6.For future reference, please retain the CLE test materials returned to you.
Test Sheet 

Mark your answers to the test by clicking next to your choice. Each question has only one answer. This test is worth 1 hour of credit.*  

1. Because employment contracts are dependent upon enforcement in state courts, it is likely that affirmative action plans in private companies will be unenforceable as a result of Proposition 209.

. 2. Initiatives rarely present problems of interpretation because they tend to avoid legalese and reflect notions generally understood by voters.

3. Under federal civil rights law, state action under the Fourteenth Amendment has been found to exist under which of the following circumstances?
A public official encouraged private discrimination.
State courts were asked to enforce racially restrictive covenants in deeds.
Nursing homes received a large portion of their income from Medicaid and were heavily regulated by states.
A and B only.  

4. Federal civil rights law since the Civil Rights Cases in 1883:
Reflects a consistent trend of greater willingness by courts to find state action and intervene in order to prevent discrimination based on race.
Reflects a consistent retreat away from government intervention to prohibit discrimination in private spheres of action as the effects of slavery have slowly disappeared.
Has varied over time regarding government intervention into private spheres of action depending on current views toward the importance of civil rights and the need for government action
Is incorporated into state law to assist in interpreting Proposition 209.  

5. The passage of Proposition 209 will compel a review of race- and gender-conscious decisions that were rendered prior to its passage in the areas of public employment, public education, and public contracting.

6. Under Proposition 209, the likely interpretation of "preference" will be:
Essentially the same as "discrimination" under federal law.
Any favorable consideration given to race or gender in public employment, public education, or public contracting.
Any court remedy that benefits a particular race or sex.
An acceptable consideration of race or gender, so long as no other race or sex is harmed.  

7. In recent years the line between public and private actions:
Has become more distinct with the advent of block grants to states.
Can usually be resolved by looking to the source of funds for the operation in question.
 May turn on whether a private entity is performing a governmental function.
Will often turn on whether or not judicial enforcement is required.  

8. Under the Personal Responsibility and Work Opportunity Reconciliation Act, federal law limits the ability of state and local governments to involve private profit and nonprofit organizations in delivering services such as healthcare and job training.

9. School desegregation programs may not be affected by enforcement of Proposition 209 because:
A. They fall under the exception to Proposition 209 for court orders in effect at the time of its passage.
B. Pupil transfer programs do not constitute a "preference" or "discrimination" under Proposition 209.
C. Local school districts are not part of the "state" and thus are not subject to Proposition 209.
D. School districts have a preexisting constitutional duty to remedy the effects of segregation.  

10. Because of California settlement practices, the exception under Proposition 209 for court orders existing at the time of its passage is not likely to avoid upsetting settled expectations based on pre-Proposition 209 settlements.

11. What is likely to occur with respect to the exception in Proposition 209 for "bona fide qualifications based on sex which are reasonably necessary to the normal operation of public employment, public education, or public contracting?"
It will be harmonized with existing California law applying strict scrutiny to classifications based on sex.
It will result in Sail'er Inn, Inc. v. Kirby being overruled, and classifications based on sex will be analyzed under the rational relation test.
It will be harmonized with federal employment law.
A and C.  

12. Proposition 1, the antibusing initiative passed in 1979, placed limits similar to those of Proposition 209 on the ability of school districts to adopt race-conscious remedies.

13. Affirmative action programs adopted by public agencies receiving federal funds may not be prohibited by Proposition 209 because:
Federal guidelines ensure that such programs are initiated only after a finding of intentional discrimination.
B. Article VI of the U.S. Constitution.
C. The Government Accounting Office will issue determinations indicating that most such programs are "essential" for obtaining or receiving federal funds. 
D. According to the legal adviser to the Proposition 209 campaign, the Proposition 209 exemption for obtaining or receiving federal funds applies to programs "generally consistent with the spirit of the federal program  

14. In his message to the California Legislature, Governor Pete Wilson declared that the statute authorizing funding for voluntary desegregation programs must be reviewed to determine if it violates Proposition 209.

15.A significant amount of litigation concerning Proposition 209 is likely because:
It generated a strong clash of values and has upset existing power relationships.
In circumstances in which none of its exceptions apply, and with the possible exception of school desegregation, Proposition 209 precludes public entities from adopting race- and gender-conscious remedies to claims of discrimination except as a result of litigation.
Attorney's fees and damages will be available whenever a private party is successful in challenging an activity under Proposition 209, and in most instances attorney's fees, at least, will be available when a private party successfully defends an activity changed or challenged as a result of Proposition 209.
All of the above.  

16. As defined by Boalt Hall Professor Paul J. Mishkin, "institutional litigation" is:
Litigation brought by large organizations to protect challenges to the status quo.
Litigation in which the claim of remedying perceived constitutional violations is the occasion for lower federal courts to order affirmative changes in, and undertake ongoing supervision of, state and local governmental units.
Litigation challenging the practices of public agencies that are facially neutral but have a discriminatory effect on women and minorities because of unconscious discrimination and long-established institutional practices or attitudes.
Litigation funded by private organizations or groups to further strongly held values.  

17. The danger of institutional litigation is that it:
Pits parties with unequal economic power against each other, which tests the integrity of the court system.
Bypasses majoritarian political controls.
Punishes institutions in the absence of any discriminatory intent.
Distorts the role of the courts as an institution that resolves disputes in the context of specific cases and controversies.  

18. Which of the following quotes is from the decision of the Ninth Circuit upholding Proposition 209 against a challenge seeking to declare it unconstitutional?
"[I]nstitutions are just when no arbitrary distinctions are made between persons in the assigning of basic rights and duties and when the rules determine a proper balance between competing claims to the advantages of social life."
"Giving preferential treatment to one person equals discriminating against another."
 "[T]o be understood, [this law] must be considered in alliance with the whole structure of society."
"A system which permits one judge to block with the stroke of a pen what 4,736,180 state residents voted to enact tests the integrity of our constitutional democracy."  

19. Proposition 209 is unlikely to generate questions about welfare reform because:
A. Welfare reform is primarily governed by federal law.
B. Welfare reform does not involve public education, public employment, or public contracting.
C. Welfare reform outreach programs are all racially neutral.
D. None of the above.  

20. Problems related to different rules regarding affirmative action under federal and state law are likely to be clarified when the U.S. Supreme Court decides Piscataway Township Board of Education v. Taxman this term.

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*The Los Angeles County Bar Association has been approved as a continuing legal education provider of Minimum Continuing Legal Education credit by The State Bar of California. This self-assessment activity will qualify for Minimum Continuing Legal Education credit by The State Bar of California in the amount of one hour.

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