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Philosophy 22B


Drawing on the reading and your own sound reasoning and good judgment, imagine you are an attorney at a major law firm, three cases have come in and the firm must decide whether or not to take them on.

You have just graduated from law school after spending your undergraduate days at Brandeis and it is your first day on the job. You are handed the following three cases and asked to write an open memorandum to members of the firm stating simply and clearly in each case which side in your best and most humble legal opinion has the better argument and (very briefly) on what basis.

Each memo should be about a half a page to a page in length, preferably typewritten. Memos are due on Friday, April 14th, in class, with an extension (upon request) on Monday, April the 17th, Tuesday, April the 18th or Wednesday, April the 19th (at the latest) in the RABB 305 by 5:00 PM.

1. Does the NCAA's Drug-Testing Program Violate an Athlete's Right of Privacy?

Since the "war" on drugs began, mandatory drug testing has increasingly been sought as a requirement by both public and private employers. Such testing is perhaps most widely known because of its use in professional and amateur athletics. Brandeis University does not have its own system of drug-testing but student athletes, who wish to compete in a varsity sport where there is a possibility that the team might compete in an NCAA chamionship game, are required to sign a consent-form, agreeing to submit to a randomly administered drug test. If they do not sign, they cannot join the team.

Brandeis passes out the consent-forms but does not administer the tests. Six years ago six members of the Brandeis baseball team were tested by the NCAA after a game with East Connecticut State. Members of the fencing team have also been tested. All had signed a form, agreeing to submit to a random test were such a test to be adminstered. The NCAA will not only randomly test players within a sport; the NCAA also picks various sports at random to be tested.

Imagine now that two Brandeis students have come to law firm where you have just been hired. They are both concerned. Indeed they are so concerned that they wish to remain anonymous to protect themselves from adverse publicity and they would like to be referred to only as "John Doe." Since there are two students, call them "John Doe One" and "John Doe Two" (collectively the "Does"). Both are Freshmen. John Doe One was a much sought after baseball pitcher. His high school team won the Eastern Regional championships, largely on the strength of his pitching. John Doe Two is a world class fencer. His weapon is foil. Both wish to continue to pursue their sport at Brandeis and both wish to join Brandeis teams that have a chance to compete in NCAA championship games.

But both the Does, John Doe One and John Doe Two, are offended by the thought of having to sign a consent-form, agreeing to submit to a random urinalysis, as a condition of their participation in their respective varsity sports. Both have decided that they would rather forego the opportunity to compete in baseball and fencing if they are required to sign a form consenting to random urine analysis. They are contemplating filing suit against the NCAA and the University claiming that such a requirement is a violation of their constitutional right of privacy.

The Does further charge that random urine testing by the NCAA constitutes a "search" and that such searches may not be conducted unless NCAA officials have probable cause to believe that a particular athlete has consumed the drugs which the test is designed to detect. They also charge that such "searches" of their person, the taking of their urine, requires the NCAA to obtain a warrant authorizing the test from a neutral and detached judicial officer; otherwise said search will amount to an unconstitutional "seach and seizure" in violation of the Fourth Amendment.

The Does also believe and this is the heart of their argument that requiring them to submit to a random urinalysis violates their constitutional right of privacy. They argue that in our society it is expected that urination be performed in private. They also argue that the mere fact that urine is voluntarily discharged from the body and treated as a waste product does not eliminate the reasonable expectation of privacy that an individual has in his or her own urine. Urine is generally expected to be disposed of in private and the act, if mentioned at all, is usually described in euphemistic terms.

While urine is excreted from the body, it is not knowingly exposed to the public. Indeed the highly private manner in which each individual disposes of his or her urine demonstrates that it is not intended to be inspected or examined by anyone. What advice do you give them?

Although your law school class on this subject was difficult and too hard to understand, luckily, you remember studying this very subject in a class you took with Professor Teuber at Brandeis in Philosophy of Law and although you hardly touched upon the subject in that course, you remember vividly everything you would ever want to know about a "right of privacy" and the Fourth Amendment.

You happen to have a number of readings on this very issue in your office and you plan to take these readings home with you. You have thumb-marked copies of the opinions in a number of significant Supreme Court cases regarding privacy, among them, Griswold v. Connecticut, United States Supreme Court, 1965, Roe v. Wade, United States Supreme Court, 1973, Planned Parenthood of S. E. Pennsylvania v. Casey, Penn. Supreme Court, and Bowers v. Hardwick, United States Supreme Court,1986. You plan to re-read all of these opinions, and to draw from them what intellectual sustenance they may be able to provide.

2. Congress Shall Make No Law . . .

"Congress shall make no law . . . abridging the freedom of speech. or of the press." These words and these are the only words, contained in the Constitution, to give guidance to the Courts in deciding free-speech cases. As one commentator has put it, "Never in the history of political institutions have so many words been poured into the interpretation of so few. Now the following case has come before the Supreme Court of Alabama, over which you preside as Chief Justice:

Alfred P. Ickes is a member of the Ku Klux Klan. Shortly after noon on Sunday, August 13, 1989, he was seen by the police wearing a long, white robe, a hood on his head, and a mask covering his entire face except for his eyes. He was standing on the sidewalk of a public street in Montgomery, Alabama in front of a bank, directly across the street from a church. He had two "buddies" with him. One was a woman wearing a long, white robe. According to Ickes, she had a hood in her hands but she was not wearing it. The other, a man, was wearing a camouflage "outfit," jacket, pants, and boots. The police arrested Ickes for wearing a mask in public in violation of an Alabama Statute (Code Number18.2-422) which states simply:

It shall be unlawful for any person over sixteen years of age while wearing any mask, hood or other device whereby a substantial portion of the face is hidden or covered so as to conceal the identity of the wearer, to be or appear in any public place, or upon any private property in this Commonwealth without first having obtained from the owner or tenant thereof consent to do so in writing.

Ickes challenged the constitutionality of Code Number18.2422, which prohibits a person from wearing a mask in public. At his original trial, Ickes testified that he wore the hood as "part of the symbolic symbol of the Klan." The "Grand Dragon" of Alabama's Klan, Pete Reinhart, testified as a witness on Ickes' behalf that a Klansman has the option of wearing a mask but that "the Klan uniform is designed to include the mask." The trial court, however, found that "this organization and its members can express themselves fully without the need for that liner or that mask to go across the face."

Now before the Alabama Supreme Court, Ickes argues that Code Number18.2422 is in violation of his First Amendment rights and is unconstitutional on its face for several reasons. (1) It is overbroad. The statute impermissibly deters or "chills," constitutionally protected freedom of expression. (2) The statute prohibits persons from wearing ski masks in the winter, Muslim women from covering their faces, widows from wearing black veils, and other similar face coverings and so is unconstitutional because it criminalizes personal expression. (3) He further contends that the evidence showed only that he wore the mask for symbolic purposes. The statute is unconstitutional as applied to him because it penalizes him for engaging in disfavored symbolic speech.

The State agreed that a statute which restricts expressive conduct because of the message it conveys is subject to "the most exacting scrutiny." But a statute whose justification has nothing to do with that speech is content-neutral. A statute is contentneutral if it is one in which "the governmental interest is unrelated to the suppression of free expression." Such a statute is constitutional so long as it furthers an important governmental interest. The Attorney General for the State of Alabama acknowledged that the legislature's original intent for passing the statute may well have been to "unmask the Klan." The statute was, after all, created in the same act with statutes prohibiting cross burning and intimidation, activities historically associated with the Klan. However, the Attorney General argued, "whatever motivation might have prompted the antimask statute's enactment, the purpose of the statute is no more than what appears in the plain language of the statute. The statute simply forbids the wearing of masks under certain circumstances. An obvious justification for such a prohibition is the prevention of violence, crime and disorder by the unmasking of potential criminals. For example, a potential rapist or bank robber wearing a mask could just as easily be prosecuted under this statute as a Klansman. The plain language of Code 18.2422 indicates no purpose to stifle the Klan's freedom of expression. Further, nothing in the record shows an indiscriminate enforcement of the statute against members of the Klan. The justification for prosecuting an individual under this statute is the same whether or not that individual is a Klansman. The incidental effect of preventing a Klansman, such as Alfred P. Ickes, from wearing his "full costume" is minor when compared to the government's interest in keeping communities safe and free from violence.

This is one of your tougher decisions. It is not an easy decision. Although your law school class on this subject was difficult and too hard to understand, luckily, you remember studying this very subject in a class you took with Professor Teuber at Brandeis in Philosophy of Law and although you hardly touched upon the subject in that course, you remember vividly everything you would ever want to know about "free speech" and the First Amendment.

You happen to have a number of readings on this very issue in your office and you plan to take these readings home with you. You have thumb-marked copies of the opinions in a number of significant Supreme Court cases regarding free-speech, among them, Cohen v. California, United States Supreme Court, 1971, and Village of Skokie v. National Socialist Party of America, Illinois Supreme Court, 1978. You are especially keen ro re-read the opinion in Texas v. Johnson, United States Supreme Court, 1989 since it involves "symbolic" expression. You plan to re-read all of these opinions, and to draw from them what intellectual sustenance they may be able to provide.

3. Can Life Itself Be "Wrongful"?

A basic element of negligence or any other tort is that the party who has "suffered" must have suffered some wrong, harm, or injury. But can life itself be an injury? More than two years ago the parents of Ron Goldman and Nicole Brown filed a "wrongful death" suit against O. J. Simpson and recently they won their suit in a Santa Monica Court. In Tarasoff v. Regents of the University of California, 131 California Reports 14, 1976, Tarasoff's parents sued the University of California for the "wrongful death" of their daughter on the grounds that the University physicians' had been negligent in their failure to warn their daughter of the danger she was in from a student whom the physicians knew had threatened to kill her.** Many products liability cases also turn on the question whether the manufacturer was negligent in failing to warn potential consumers of some danger or defect. But what about the following case?

On September 11, 1995 Paul and Shirley Copleston filed a malpractice suit against Bernard Williams and Robert Merowitz, medical doctors for the State of Massachusetts, for their "negligent failure to warn" Shirley Copleston, the mother of a baby girl afflicted with Down's Syndrome, about amniocentesis. The Copleston's filed their suit in their own names and on behalf of Sharon as her legal Guardians. On November 3, 1994 Sharon was born with Down's Syndrome a genetic defect commonly referred to as mongolism. At the time of Sharon's birth, Shirley Copleston was 38 years old. The Coplestons allege that the doctors deviated from accepted medical practice by failing to inform Shirley during her pregnancy of the existence of the procedure known as amniocentesis. This procedure involves the insertion of a long needle into the mother's uterus and the removal of a sample of amniotic fluid containing fetal cells. Through "karyotype" analysis a procedure in which the number and structure of chromosomes are examined the sex of the fetus as well as the presence of gross chromosomal defects can be detected. The Coplestons claim that had Shirley been informed of the risk that her child might have a genetic defect, given Shirley's age at the time, and had she been informed about the availability of amniocentesis, she would have submitted to the amniocentesis procedure, discovered that the child, if born, would suffer from Down's Syndrome, and she would have had the fetus aborted. As a result of the doctors' negligent failure to warn Shirley of the risks and inform her of her options, the Coplestons are seeking as their daughter's Guardians and on her behalf compensation for the physical and emotional pain and suffering that Sharon will have to endure throughout her life because of her condition. The Coplestons seek too as Sharon's parents damages in their own right both for the emotional anguish which they have experienced and will continue to experience on account of Sharon's birth defect, and for the medical and other costs which they will incur in order to raise, educate, and supervise their daughter properly.

The claim for damages asserted on Sharon's behalf does not assert that absent the doctors' negligence she would have come into the world a normal and healthy human being. There is also no suggestion in the medical literature that had the Coplestons been made aware of the fact their child would be born with Down's Syndrome that any therapy or further medical procedure could have been applied that would have reduced the risk that, upon birth, Sharon would suffer from Down's Syndrome. This case differs from usual malpractice suits where a plaintiff alleges that a doctor's deviation from sound medical practice increased the probablity that an infant would be born with defects. See Bernstein v. Overseers of Harvard University (Hand-out) and the actual case Tarasoff

Nor are we dealing here with a case where something was done during the course of pregnancy that caused what otherwise would have been a normal and healthy child to come into the world in an impaired condition. Here the doctors' alleged negligence neither caused the condition nor increased the risk that such a condition would occur. Indeed the Coplestons agree and so state in their suit on behalf of their daughter that "Sharon claims not that she would have been born without defects, but that she should not have been born at all." In essence, Sharon claims that her very life is "wrongful."

Did the doctors' negligence cause Sharon's "wrongful life?" Should Sharon receive damages for her "wrongful life?" Should her parents be able to recover damages in their own right for the "wrongful birth" of their daughter? Make a case for or against the liability of the doctors for Sharon's "wrongful life."

You should feel free to expand upon the "facts" of this case as outlined above in order to explore how a change in this or that fact might affect your answer. To imagine, for example, that Sharon is much older and brings suit herself against the doctors for her "wrongful life." Does it make any difference to this case that her parents file suit on their daughter's behalf?

The primary purpose of tort law is to provide ways for plaintiffs to gain compensation for injuries they have wrongfully suffered at the hands of others. How are Sharon's injuries to be measured in this case? Has she suffered an injury? You may wish, too, to compare this case with Tarasoff. There plaintiffs accused doctors of a negligent failure to warn, only in that case the result was a "wrongful death," not a "wrongful life." Can a "wrongful life" be a valid cause of legal action? Why? And if not, why not?

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Page last edited: February 1, 2000