Share
Explore BrainMass

Administrative Law: Administrative Procedure and Judicial Review

Based on the scenario below, compile a list of major points to be discussed, major sources to use as references, a list of major constitutional issues and any assumptions that can be incorporated into the facts to make an analysis.

Scenario: Congress passed a statute entitled the Cell Phone Education Regulation Act (CPERA) to confront the possession and use of cellular phones by students in primary schools. Congress was concerned with the ability of students to cheat on exams and other assessments by using text messaging and other cellular functions, as well as the inability of school administration to address and control the problem. In CPERA, Congress provided for the
establishment of the Cellular Educational Service (CES), an agency to oversee the creation and enforcement of the necessary rules and regulations to meet the objectives of CPERA. CES unilaterally enacted a series of rules and regulations that required all students to undergo a search of their clothes, backpacks, lockers, and desks
each morning. The rules also permitted random searches to take place. A hidden provision in the regulation allowed for enforcement officials to target their investigations more towards female students than male students, since studies had shown that females talk on cellular phones more often than males.

Penalties for violating CES rules and regulations include the following: for a first offense, no hearing is held and the student receives a written warning; for a second offense, a hearing conducted by school officials is held and an automatic suspension is handed down; for a third offense, a full hearing is held by a board for the CES, after which a guilty finding results in expulsion, arrest, and incarceration for 30 days. School officials are also permitted, under the regulations, to permanently keep any cellular phones they confiscate.

A group of parents has come to the office where you work outraged by the substance of these rules and regulations. They are also upset by the fact that no notice was given or hearings held prior to the enactment of the rules and regulations. Finally, they do not think it was permissible for Congress to delegate to this agency the power to enforce regulations of this kind.

One parent in particular, Ted McKinley, is irate because his daughter, Martha, was reported for committing a third offense of the rules and regulations but was not given notice of her infraction or an opportunity to appear and defend herself against the charges. Martha was immediately expelled from school, arrested, and incarcerated. Her cellular phone was taken and not returned to her or her parents. The board of the CES decided that underage children lack sufficient capacity to appear of their own behalf at agency hearings, and determined unilaterally that Martha was guilty of violating the rules and regulations. Ted wishes to challenge in court the
agency's decision as well as ascertain what remedies he has against the government and school officials for their conduct.

Solution Preview

Administrative Law

Based on the below scenario, complie a list of major points to be discussed, major sources to use as references, a list of major constitutional issues and any assumptions that can be incorporated into the facts to make an analysis.

First and foremost it must be stated that the United States Constitution mandates Congress the autonomy to create agencies to determine legislative laws that are enforceable across the country. This is buffered by the fact that the Supreme Court has the right to use judicial review to analyze the constitutionality of any legislative statute issued by Congress or any agency created by Congress. The CPERA agency created by Congress would have the autonomy to develop laws regarding cellular phone use in primary schools but very serious constitutional issues are present within the scenario presented. These constitutional issues will be addressed along with the substantive administrative law that is the basis of administrative law. ...

Solution Summary

The major constitutional issues and assumptions that can be incorporated into the facts to make an analysis is given.

$2.19