Time Line: The Court Today
Events during the summer and early fall of 2005 brought the Supreme Court to the front pages of America's newspapers and placed it in the opening segments of televised newscasts, competing there with the remarkably compelling stories emanating from Iraq and New Orleans. This uncommon visibility resulted from Associate Justice Sandra Day O'Connor's announcement on June 1 of her retirement from the Court, followed on September 3 by the death of Chief Justice William Rehnquist. For the preceding eleven years the membership of the Supreme Court had not changed. The only longer period of such stability was during the era of the historic Marshall Court (membership remained the same for twenty-two years between 1812 and 1834). President George W. Bush, with a majority of fellow Republicans in the Senate, found himself in a position to influence appreciably the Court's future direction with two new appointments. As an acknowledged "conservative," the President could have assured that the Court had a clear conservative majority for the foreseeable future. Thus, his appointments and the Senate's advice and consent on these appointments suggested all the marks of partisan battle because of the division in the nation and the Court over fundamental issues of law and social policy..
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| The Warren Court (1953-1969) |
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| Date |
| WI v. Yoder
(1972)
(Argued December 8, 1971; decided May 15, 1972. Vote of Court 6-1)
Battle:
Opinion:
Context:
Impact/Consequences:
Quotes:
"A. Yes. "Q. That is the only reason? "A. Yes."
"We must not forget that in the Middle Ages important values of the civilization of the Western World were preserved by members of religious orders who isolated themselves from all worldly influences against great obstacles. There can be no assumption that today's majority is "right" and the Amish and others like them are "wrong." A way of life that is odd or even erratic but interferes with no rights or interests of others is not to be condemned because it is different."
"Long before there was general acknowledgment of the need for universal formal education, the Religion Clauses had specifically and firmly fixed the right to free exercise of religious beliefs, and buttressing this fundamental right was an equally firm, even if less explicit, prohibition against the establishment of any religion by government.... The impact of the compulsory-attendance law on respondents' practice of the Amish religion is not only severe, but inescapable, for the Wisconsin law affirmatively compels them, under threat of criminal sanction, to perform acts undeniably at odds with fundamental tenets of their religious beliefs."
"A State has a legitimate interest not only in seeking to develop the latent talents of its children but also in seeking to prepare them for the life style that they may later choose, or at least to provide them with an option other than the life they have led in the past. In the circumstances of this case, although the question is close, I am unable to say that the State has demonstrated that Amish children who leave school in the eighth grade will be intellectually stultified or unable to acquire new academic skills later. The statutory minimum school attendance age set by the State is, after all, only 16."
"On this important and vital matter of education, I think the children should be entitled to be heard. While the parents, absent dissent, normally speak for the entire family, the education of the child is a matter on which the child will often have decided views. He may want to be a pianist or an astronaut or an oceanographer. To do so he will have to break from the Amish tradition. It is the future of the student, not the future of the parents, that is imperiled by today's decision. If a parent keeps his child out of school beyond the grade school, then the child will be forever barred from entry into the new and amazing world of diversity that we have today. The child may decide that that is the preferred course, or he may rebel. It is the student's judgment, not his parents', that is essential if we are to give full meaning to what we have said about the Bill of Rights and of the right of students to be masters of their own destiny."
Questions to Ponder:
In this case, the parents felt that high school education was contrary to their religion and opted their children out. What if they felt that any education after elementary school was contrary to their religion and opted out? Would the state have a greater, off-setting interest in that case? At what age or grade do you think the state's interest in an educated citizenry takes precedence over the parents' religious rights? In Yoder, families were given the right to determine their children's education to conform to their religion. What if the health and safety of the child is involved? Does the state's interest in those matters carry a greater weight than the family? What if families want their young children to pick crops in violation of child labor laws? What if families felt that immunization against contagious diseases was contrary to their religion? What if parents beat their children and claim it's the way they discipline in their religion? On the other hand, if non-religious parents keep their children from attending school, isn't it considered neglect? Does this penalize non-religious families? Could the state of Wisconsin have satisfied its interest in educating children to the age of sixteen in any other way (for example, home-schooling) which would have met the needs of the Amish parents? Justice White made a point that Wisconsin's law only required students to stay in school until they were sixteen, (rather than eighteen, for example.) Some school districts allow students to combine their junior-senior years and graduate at the age of sixteen or seventeen. Have developments such as computer-enabled virtual schools made the state's case for age-determined compulsory schooling even weaker than it was at the time of Yoder? At the time of Yoder, some of the justices pointed out the number of children abandoning traditional Amish lives was increasing, and it has continued to increase, so has the Amish legal argument weakened since 1972? Selected Bibliography:
Peters, Shawn F. The Yoder Case: Religious Freedom, Education, and Parental Rights. (Lawrence, KS: University Press of Kansas, 2003.) van Geel, Tyll. The Courts and American Education Law. (Buffalo: Prometheus Books, 1987.) Gateway Links: |
| Goss v. Lopez
(1975)
(Argued October 16, 1974; decided January 22, 1975. Vote of Court: 5-4)
Battle:
Opinion:
Context:
As the citizens of Ohio and the nation were absorbing this event, student protest continued to spread, not only on college campuses but among younger students in high schools and even junior high schools. To be clear, not all student protest was in reaction to the Vietnam War. In Columbus, a great deal had to do with public reaction to racial integration. As a consequence of delay following Brown v. Board of Education (1954), the Supreme Court heard arguments in October 1970 about whether federal courts could order remedies, including busing, to correct racial inequalities in the schools (Swann v. Charlotte-Mecklenburg Board of Education (1971). The future of segregated schools, including those of Columbus, was uncertain. Then, in January 1971, the Police Academy of Columbus, Ohio admitted for the first time African Americans (seven candidates) as a preliminary step to integrating its police department. Columbus was bubbling with tension by early 1971 and this was played out in the schools. In 1973, two years after the disturbances that triggered Goss, but prior to the Supreme Court's decision in the case, the NAACP sued Columbus Public School System to force it to integrate. This was accomplished by court-ordered busing beginning in 1979, which was completed by 1985. Impact/Consequences: Goss v. Lopez is considered the landmark case that established students' due process rights when facing disciplinary punishments in public school. By holding that students have both property and liberty interests in education that are protected by the Fourteenth Amendment, it has been applied to cases considering questions beyond the narrow issue of a ten-day suspension, which was at the root of Goss. The opinion has been repeatedly cited in cases pertaining to students' rights and the rights of minors. Beyond its impact in court cases, Goss has had a major impact on the ways schools operate. The decision in Goss spurred school systems to establish due process procedures for academic and non-academic matters, ranging from placement in special needs classrooms to retention in grade. It has led to the widespread use of interim reports, parent conferencing, and appeal boards to accommodate student rights as well as to protect school systems from litigation initiated by parents or students. Quotes:
"...the State is constrained to recognize a student's legitimate entitlement to a public education as a property interest which is protected by the Due Process Clause and which may not be taken away for misconduct without adherence to the minimum procedures required by that Clause. The Due Process Clause also forbids arbitrary deprivations of liberty. "Where a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him," the minimal requirements of the Clause must be satisfied."
"If, as seems apparent, the Court will now require due process procedures whenever such routine school decisions are challenged, the impact upon public education will be serious indeed. The discretion and judgment of federal courts across the land often will be substituted for that of the 50 state legislatures, the 14,000 school boards, and the 2,000,000 teachers who heretofore have been responsible for the administration of the American public school system. If the Court perceives a rational and analytically sound distinction between the discretionary decision by school authorities to suspend a pupil for a brief period, and the types of discretionary school decisions described above, it would be prudent to articulate it in today's opinion. Otherwise, the federal courts should prepare themselves for a vast new role in society."
Questions to Ponder:
Goss v. Lopez involved students in public secondary schools. Do students have a constitutional right to education? Do students in elementary school need different due process rights than those in middle and high school, or not? Do students in private schools operate under different due process rights than those in public school? Should they? As long as schools have fair procedures, do they need to have all the due process protections in the Bill of Rights? Compare the circumstances in Columbus, Ohio with those in Des Moines, Iowa during the Tinker case. How were they similar? How were they different? Columbus Public School System had experienced destruction of property and physical violence. What rights (of other students as well as parents and the state) were threatened by these types of actions? Are there circumstances when health and safety are so critical that school officials need to be able to act without following formal due process? Is discipline a key to good citizenship and character? Justice Powell noted in his Goss dissent, "They [teachers and school authorities] must decide, for example, how to grade the student's work, whether a student passes or fails a course, whether he is to be promoted, whether he is required to take certain subjects, whether he may be excluded from interscholastic athletics or other extracurricular activities, whether he may be removed from one school and sent to another, whether he may be bused long distances when available schools are nearby, and whether he should be placed in a 'general,' 'vocational,' or 'college-preparatory' track." Are all of these matters a matter of due process as well? What safeguards does your school system have for students? Selected Bibliography:
Mnookin, Robert H., and D. Kelly Weisberg. Child, Family, and State: Problems and Materials on Children and the Law. 4th ed. (Gaithersburg, MD: Aspen Law & Business, 2000.) Reutter, Edmund. The Supreme Courts' Impact on Public Education. (Bloomington, IN: Phi Delta Kappa and The National Organization on Legal Problems of Education, 1982.) van Geel, Tyll. The Courts and American Education Law. (Buffalo, NY: Prometheus Books, 1987.) Gateway Links: |
| U. of CA v. Bakke
(1978)
(Argued October 12, 1977; decided June 26, 1978. Vote of Court: 5-4)
Battle:
Opinion:
Context:
Impact/Consequences:
Other affirmative action cases have followed the Bakke decision and, in the words of Justice Sandra Day O'Connor, "The Court's failure to produce a majority opinion in Bakke, Fullilove, and Wygant left unresolved the proper analysis for remedial race-based governmental action." This confusion persists. The Court has considered some affirmative action cases, which have involved set-aside money to minority contractors as a form of affirmative action. In Richmond v. J. R. Croson (1989), the Supreme Court ruled that racial set-asides could remedy only the discrimination practiced by the governmental body approving the set-aside, not general societal discrimination against a minority, thus narrowing what affirmative actions are permissible. It also said that any race-based action by government should meet a "strict scrutiny" test under the Fourteenth Amendment. However, the following year in Metro Broadcasting Inc. v. FCC (1990), the Supreme Court said that in the case of "benign" racial classifications, only an "intermediate scrutiny" need be applied under the Fifth Amendment to actions by the federal government. The court then reversed its Metro Broadcasting decision in Adarand Constructors v. Pena (1995), returning to the "strict scrutiny test." The Supreme Court considered two challenges to admissions programs of the University of Michigan: Grutter v. Bollinger (2003), which involved the law school and Gratz v. Bollinger (2003), which involved undergraduate admissions to the college. The undergraduate policy, which weighted race more heavily, was struck down 6-3 in the Gratz decision while the law school policy, which considered race in a broader treatment of diversity and was more individualized, was upheld 5-4 in the Grutter decision. The Bakke case's greatest legacy appears to be nearly 30 years of confusion about the legal parameters of affirmative action. Quotes:
"I do believe that his motivation is a strong one and I further believe that his academic record supports his ability to do good work in medical school. I imagine that he would be a very hard worker, but that he would have a tendency to do things by the book and would have difficulty reaching independent conclusions. I would rate him acceptable, but certainly not an outstanding candidate for our school."
"The guarantees of the Fourteenth Amendment extend to all persons. Its language is explicit: "No State shall ... deny to any person within its jurisdiction the equal protection of the laws." It is settled beyond question that the "rights created by the first section of the Fourteenth Amendment are, by its terms, guaranteed to the individual. The guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color. If both are not accorded the same protection, then it is not equal.... In summary, it is evident that the Davis special admissions program involves the use of an explicit racial classification never before countenanced by this Court. It tells applicants who are not Negro, Asian, or Chicano that they are totally excluded from a specific percentage of the seats in an entering class. No matter how strong their qualifications, quantitative and extracurricular, including their own potential for contribution to educational diversity, they are never afforded the chance to compete with applicants from the preferred groups for the special admissions seats."
"In such an admissions program, race or ethnic background may be deemed a "plus" in a particular applicant's file, yet it does not insulate the individual from comparison with all other candidates for the available seats. The file of a particular black applicant may be examined for his potential contribution to diversity without the factor of race being decisive when compared, for example, with that of an applicant identified as an Italian-American if the latter is thought to exhibit qualities more likely to promote beneficial educational pluralism. Such qualities could include exceptional personal talents, unique work or service experience, leadership potential, maturity, demonstrated compassion, a history of overcoming disadvantage, ability to communicate with the poor, or other qualifications deemed important....This kind of program treats each applicant as an individual in the admissions process. The applicant who loses out on the last available seat to another candidate receiving a "plus" on the basis of ethnic background will not have been foreclosed from all consideration for that seat simply because he was not the right color or had the wrong surname. It would mean only that his combined qualifications, which may have included similar nonobjective factors, did not outweigh those of the other applicant. His qualifications would have been weighed fairly and competitively, and he would have no basis to complain of unequal treatment under the Fourteenth Amendment."
"The difficulty of the issue presented--whether government may use race-conscious programs to redress the continuing effects of past discrimination--and the mature consideration which each of our Brethren has brought to it have resulted in many opinions, no single one speaking for the Court. But this should not and must not mask the central meaning of today's opinions: Government may take race into account when it acts not to demean or insult any racial group, but to remedy disadvantages cast on minorities by past racial prejudice, at least when appropriate findings have been made by judicial, legislative, or administrative bodies with competence to act in this area."
Questions:
What is the difference in "racial quotas" (prohibited by the Supreme Court) and "racial preference" as one element in admissions (supported by the by the Supreme Court)? What makes a group a "minority group"? Who decides? Did Bakke undercut Brown v. Board of Education? How can past discrimination be remedied best? Bakke was a severely split decision while Brown was unanimous. Do unified court opinions have a greater impact than divided ones? The Bakke case involved affirmative action for medical school admission. Would the case have been as compelling if it had been fought over admission to an undergraduate college? What if Allan Bakke had wanted admission to law school or, as Joe Moran did in a different case, to a school of nursing? What if Bakke involved set-asides for minority contractors? Do you think, if the right case comes to the Supreme Court, that Bakke could be reversed? Upheld unanimously? What do you think the future holds for affirmative action? Selected Bibliography:
Caplan, Lincoln. Up Against the Law: Affirmative Action and the Supreme Court. (New York: Century Foundation Press, 1997.) Chavez, Lydia. The Color Bind: California's Battle to End Affirmative Action. (Berkeley, CA: University of California Press, 1998.) Curry, George and West, Cornel, eds. The Affirmative Action Debate. (Boston: Addison, Wesley Publishing Company, 1996.) Edley, Christopher, Jr. Not All Black and White: Affirmative Action, Race, and American Values. (New York: Farrar, Straus, and Giroux, 1998). Lowe, Eugene Y., Jr., ed. Promise and Dilemma; Perspectives on Racial Diversity and Higher Education. (Princeton, NJ: Princeton University Press: l999.) Steele, Shelby. A Dream Deferred: The Second Betrayal of Black Freedom in America. (New York: Harper Perennial, 1999.) Thernstrom, Stephan. The End of Preferences: Behind the UC Admissions Controversy. (Washington, DC: Center for Equal Opportunity. September 1997.) Gateway Links: |
| Wallace v. Jaffree
(1985)
(Argued December 4, 1984; decided June 4, 1985. Vote of Court: 6-3)
Battle:
Opinion:
Context:
Impact/Consequences:
Quotes:
"God is great, God is good, --Unison prayer sung in Ms. Boyd's class at E. R. Dickson Elementary School beginning September 16, 1981 and continuing through the 1981-1982 school year "I wanted my children to be free from programmed thinking, conditioned thinking. I wanted them to be free to explore a wide variety of ideas and not have to go through the long and painful metamorphosis that I went through."
"Nothing in the United States Constitution as interpreted by this Court or in the laws of the State of Alabama prohibits public school students from voluntarily praying at any time before, during, or after the schoolday."
"Just as the right to speak and the right to refrain from speaking are complementary components of a broader concept of individual freedom of mind, so also the individual's freedom to choose his own creed is the counterpart of his right to refrain from accepting the creed established by the majority. At one time it was thought that this right merely proscribed the preference of one Christian sect over another, but would not require equal respect for the conscience of the infidel, the atheist, or the adherent of a non-Christian faith such as Islam or Judaism. But when the underlying principle has been examined in the crucible of litigation, the Court has unambiguously concluded that the individual freedom of conscience protected by the First Amendment embraces the right to select any religious faith or none at all. This conclusion derives support not only from the interest in respecting the individual's freedom of conscience, but also from the conviction that religious beliefs worthy of respect are the product of free and voluntary choice by the faithful, and from recognition of the fact that the political interest in forestalling intolerance extends beyond intolerance among Christian sects--or even intolerance among "religions"--to encompass intolerance of the disbeliever and the uncertain." --Justice John Paul Stevens, 1985 Wallace v. Jaffree opinion "To suggest that a moment-of-silence statute that includes the word "prayer" unconstitutionally endorses religion, while one that simply provides for a moment of silence does not, manifests not neutrality but hostility toward religion ... The notion that the Alabama statute is a step toward creating an established church borders on, if it does not trespass into, the ridiculous. The statute does not remotely threaten religious liberty; it affirmatively furthers the values of religious freedom and tolerance that the Establishment Clause was designed to protect. Without pressuring those who do not wish to pray, the statute simply creates an opportunity to think, to plan, or to pray if one wishes--as Congress does by providing chaplains and chapels. It accommodates the purely private, voluntary religious choices of the individual pupils who wish to pray while at the same time creating a time for nonreligious reflection for those who do not choose to pray."
"The Framers intended the Establishment Clause to prohibit the designation of any church as a "national" one. The Clause was also designed to stop the Federal Government from asserting a preference for one religious denomination or sect over others. Given the "incorporation" of the Establishment Clause as against the States via the Fourteenth Amendment in Everson, States are prohibited as well from establishing a religion or discriminating between sects. As its history abundantly shows, however, nothing in the Establishment Clause requires government to be strictly neutral between religion and irreligion, nor does that Clause prohibit Congress or the States from pursuing legitimate secular ends through nondiscriminatory sectarian means."
Questions to Ponder:
Why was it legal to have a moment of silence in Alabama, but not a moment of silence and voluntary prayer? Do you think, in this case, that the Court's decision was neutral towards religion or hostile towards it? Why is it legal for the Supreme Court to open its day with a prayer, but not for a school to open its day with a prayer led by a teacher? What is the difference? Is there any difference in prayer led by teachers during the school day in a school classroom and those offered by student football players before a football game at the school stadium? Jefferson wrote to the Danbury Baptist Association in January 1802, fourteen years after the First Amendment had been adopted saying, "I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should `make no law respecting an establishment of religion, or prohibiting the free exercise thereof,' thus building a wall of separation between church and State." The phrase "wall of separation" has been routinely quoted by the court even though it is not part of the Constitution or Bill of Rights. Why do you think this sentence has had such a great impact on the Supreme Court? Read Robert Alley's rebuttal to Justice Rehnquist about the "wall of separation" and decide if Madison and the founders had a broader idea about religious establishment than Rehnquist argued. How can the court balance the free exercise clause and the religious establishment clause in the schools? Selected Bibliography:
Brown, Patrick F. "Wallace v. Jaffree and the Need to Reform Establishment Clause Analysis." 35 Catholic University Law Review 573 (Winter, 1986.) Conkle, Daniel O. Moment of Silence Statutes, Wallace v. Jaffree, and Witters v. Washington Department of Services for the Blind, in Encyclopedia of American Civil Liberties (Paul Finkelman, Ed.). (New York: Routledge, forthcoming 2005.) Haynes, Charles C. et al. The First Amendment in the Schools. (Alexandria, Virginia: ASCD, 2003) Irons, Peter. The Courage of Their Convictions: Sixteen Americans Who Fought Their Way to the Supreme Court. (New York: The Free Press, 1988.) van Geel, Tyll. The Courts and American Education Law. (Buffalo: Prometheus Books, 1987.) Gateway Links: |
| Bethel School District v. Fraser
(1986)
(Argued March 3, 1986; decided July 7, 1986. Vote of Court: 7-2)
Battle:
Matt's father brought suit in the United States District Court alleging that the removal of his son from the list of prospective graduation speakers constituted a violation of the First Amendment right to freedom of speech. Relying on Tinker v. Des Moines, both the District Court and the Ninth Circuit Court of Appeals ruled in Fraser's favor. The school district appealed to the Supreme Court, asking the queston: was disruptive speech protected speech, or not? Opinion:
Dissenting Justices Marshall and Stevens questioned the degree that Matthew Fraser's speech had disrupted the high school's educational process. Context:
Impact/Consequences:
The students of Bethel High School elected Matthew Fraser's nominee, Jeff Kuhlman, as student government vice president by a wide margin. Matt Fraser served two days of his three-day suspension and was readmitted to school on the third day. When the U.S. District Court ruled in his favor, Matthew Fraser was allowed to speak at commencement ceremonies on June 8, 1983, apparently without incident. Quotes:
"We were never looking for a test case. This case occurred because of one phone call. I got a call from a school official saying, 'We had a student give a lewd speech before a student assembly. Can we discipline him?' I said yes."
"Senators have been censured for abusive language directed at other Senators. See Senate Election, Expulsion and Censure Cases from 1793 to 1972, S. Doc. No. 92-7, pp. 95-98 (1972) (Sens. McLaurin and Tillman); id., at 152-153 (Sen. McCarthy). Can it be that what is proscribed in the halls of Congress is beyond the reach of school officials to regulate?"
"We hold that petitioner School District acted entirely within its permissible authority in imposing sanctions upon Fraser in response to his offensively lewd and indecent speech. Unlike the sanctions imposed on the students wearing armbands in Tinker, the penalties imposed in this case were unrelated to any political viewpoint. The First Amendment does not prevent the school officials from determining that to permit a vulgar and lewd speech such as respondent's would undermine the school's basic educational mission. A high school assembly or classroom is no place for a sexually explicit monologue directed towards an unsuspecting audience of teenage students. Accordingly, it was perfectly appropriate for the school to disassociate itself to make the point to the pupils that vulgar speech and lewd conduct is wholly inconsistent with the "fundamental values" of public school education."
"'Frankly, my dear, I don't give a damn.' When I was a high school student, the use of those words in a public forum shocked the Nation. Today Clark Gable's four-letter expletive is less offensive than it was then ... he [Matthew Fraser] was probably in a better position to determine whether an audience composed of 600 of his contemporaries would be offended by the use of a four-letter word--or a sexual metaphor--than is a group of judges who are at least two generations and 3,000 miles away from the scene of the crime."
Questions to Ponder:
Another key matter that concerned the Court in Bethel was the setting: a school-sponsored assembly, where there was, effectively a "captive audience." If Matthew Fraser had made his comments in the hallway, would it have made a difference? If the speech had been made in a single classroom, the audience would still be "captive," but would the number of students exposed to his comments have made a difference? What about if he'd spoken at an extracurricular activity, such as a rally for his candidate after school hours? What if he made it at a voluntary event for which students had paid entry, such as a football awards banquet? The justices noted that the speech was particularly offensive to teenage girls. If school administrators permitted unlimited sexual innuendo, would they then be condoning sexual harassment? A further concern of the justices was the age of the students the comments were made before--many were only fourteen years old. If Matthew Fraser's comments had been made at a college, would it have made a difference? Should the threshold for disruptive speech be different at, for example, elementary than middle school? Middle school than high school? High school than college? Many school districts have policies barring students from wearing T-shirts with obscene words or images. Bethel involved the spoken word, which caused uproar during the speech and for a brief time afterwards. Is the spoken word less disruptive than the printed word or image? Should a school discipline students more severely for wearing a tee-shirt with an obscene word or image than for saying an obscene word? For writing an obscene word in the bathroom or on a desk rather than for speaking it? What if the disruptive image is, for example, a Confederate flag, rather than a tee-shirt with sexually explicit material? Jefferson's Manual of Parliamentary Procedure, used by the House of Representatives, and Rules of Debate, used by the Senate, both prohibit the use of abusive and indecent language, even during most bitter debates in the U.S. Capitol. Many people complain of the lack of civility in political debate today, so does it make sense to compel students to adhere to at least the minimal standard of non-disruptive language? Selected Bibliography:
Dowling-Sendor, Benjamin, "A Matter of Disruption, Not Dress," American School Board Journal 185 (August 1998): 14--15, 47. Mnookin, Robert H., and D. Kelly Weisberg. Child, Family, and State: Problems and Materials on Children and the Law. 4th ed. (Gaithersburg: Aspen Law & Business, 2000.) Rubin, David B., "Passing Through the 'Schoolhouse Gate': Constitutional Implications of Preserving School Safety," New Jersey Lawyer 154 (July 1993): 36--37. Splitt, David A., "School Law," Executive Educator 8 (December 1986): 5. Stein, Nan, "Is it Sexually Charged, Sexually Hostile, or the Constitution? Sexual Harassment in the K-12 Schools," West's Education Law Reporter 98 (1995): 621--31. van Geel, Tyll. The Courts and American Education Law. (Buffalo: Prometheus Books, 1987.) Weisenberger, Clay, "Constitution or Conformity: When the Shirt Hits the Fan in Public Schools," Journal of Law and Education (January 2000): 51--61. Zirkel, Perry A., Sharon Nalbone Richardson, and Stacy Mackenzie, "Tinkering with the First Amendment Rights of Students," West's Education Law Reporter 80 (1987): 433--77. Gateway Links:
FindLaw for Legal Professionals:
First Amendment Center:
Matthew Fraser speaks out on 15-year-old free-speech decision by David Hudson:
Lesson Plan Case Study Handout:
The Missouri Bar: Lesson Plan, The First Amendment and Teenagers:
Oyez Supreme Court Multimedia:
Prentice-Hall at School: Supreme Court Cases:
University of Houston Law Center:
University of Missouri-Kansas City Law School, Speech Rights of Public School Students:
Gateway Links: |
| MO v. Jenkins
(1995)
Decided by a vote of 5 to 4
Racial Discrimination Conflict:
The district court ordered an increase in property taxes to finance creation of a magnet school program. The court hoped to create a "magnet district" to attract non-minority students into Kansas City schools, 25 of which still had 90 percent black students in their school population. Missouri appealed in the second Missouri v. Jenkins case, 1990. The Supreme Court ruled 5-4 that the district judge could not personally order a tax increase but had the authority to order the school board to raise taxes. The district court ordered Missouri to pay for salary increases and remedial programs in the school district because students continued to perform at or below national norms for their grade levels. Missouri believed that the federal district court had exceeded its authority in ordering the state to pay to create a "magnet district" equal to or better than surrounding school districts. Features of the district included "high schools in which every classroom will have air conditioning, an alarm system, and 15 microcomputers; a 2,000-square-foot planetarium; green houses and vivariums; a 25-acre farm with an air-conditioned meeting room for 104 people; a Model United Nations wired for language translation; broadcast capable radio and television studios with an editing and animation lab; a temperature controlled art gallery; movie editing and screening rooms; a 3,500-square-foot dust-free diesel mechanics room; 1,875-square-foot elementary school animal rooms for use in a zoo project; swimming pools; and numerous other facilities." Missouri believed it should not have to pay for school system expenses not related to the original constitutional violation of operating segregated schools. The Court of Appeals affirmed the district court's order, explaining that the funds were necessary to improve the schools to prevent "white flight" into the suburbs. Missouri appealed to the United States Supreme Court in the third case named Missouri v. Jenkins (1995). Opinion:
Context:
In overturning Plessy v. Ferguson (1896), the Supreme Court demolished the legal foundation of segregation in public schools and ultimately "Jim Crow" laws at all levels of government, which had enforced racial separation from drinking fountains to the nation's blood supply. Brown was not the only reason for the Civil Rights movement, but it provided the unchallengeable legal authority that, when joined with the determination and moral authority of all those struggling to achieve African-American equality, led to progress. Because it was a legal process, and also because the Court implementation order said "with all deliberate speed" rather than "immediately," the actual desegregation of American education advanced slowly. U.S. Supreme Court decisions in the first stage of desegregation, including Cooper v. Aaron (the desegregation of Little Rock, Arkansas schools, 1958), Green v. County School Board of New Kent County, Virginia (1968), Alexander v. Holmes County Board of Education (1969, when the Court declared that time had run out for stalling school systems), Griffin v. County School Board of Prince Edward County, Virginia (state aid to all-white private schools, 1964), and Swann v. Charlotte-Mecklenburg Board of Education (school-busing, 1971) provided federal district courts broad legal authority to enforce Brown. Between 1974 and 1991, the Supreme Court's decisions narrowed the lower courts' authority and required that local authorities have a greater role in the process of school desegregation. The percentage of black students attending white-majority schools rose from .001 percent in 1954 to 39 percent in 1991. Since 1991, the Supreme Court's rulings (including Board of Education of Oklahoma v. McDowell in 1991 and Freeman v. Pitts in 1992) led to the release of many school districts from lower court desegregation decrees, although nearly 100 school systems remain under court-ordered plans. Impact/Consequences:
Quotes:
"Courts, however, are different. The necessary restrictions on our jurisdiction and authority contained in Article III of the Constitution limit the judiciary's institutional capacity to prescribe palliatives for societal ills. The unfortunate fact of racial imbalance and bias in our society, however pervasive or invidious, does not admit of judicial intervention absent a constitutional violation."
"It never ceases to amaze me that the courts are so willing to assume that anything that is predominantly black must be inferior. Instead of focusing on remedying the harm done to those black schoolchildren injured by segregation, the District Court here sought to convert the Kansas City, Missouri, School District (KCMSD) into a "magnet district" that would reverse the "white flight" caused by desegregation.... there is no reason to think that black students cannot learn as well when surrounded by members of their own race as when they are in an integrated environment."
"The Court appears to assume that the effects of segregation were wholly contained within the KCMSD, and based on this assumption argues that any remedy looking beyond the district's boundaries is forbidden. The Court's position rests on the premise that the District Court and the Court of Appeals erred in finding that segregation had produced effects outside the district, and hence were in error when they treated the reversal of those effects as a proper subject of the equitable power to eliminate the remaining vestiges of the old segregation so far as practicable. The Court has not shown the trial court and the Eighth Circuit to be wrong on the facts, however, and on the record before us this Court's factual assumption is at the very least a questionable basis for removing one major foundation of the desegregation decree.. My sole point is that the Court is not in any obvious sense correct, wherever the truth may ultimately lie."
"The Court stresses that the present remedial programs have been in place for seven years. But compared to more than two centuries of firmly entrenched official discrimination, the experience with the desegregation remedies ordered by the District Court has been evanescent.... Just ten years ago, in June 1985, the District Court issued its first remedial order. Today, the Court declares illegitimate the goal of attracting nonminority students to the Kansas City, Missouri, School District, and thus stops the District Court's efforts to integrate a school district that was, in the 1984/1985 school year, sorely in need and 68.3% black. Given the deep, inglorious history of segregation in Missouri, to curtail desegregation at this time and in this manner is an action at once too swift and too soon."
Questions to Ponder:
Selected Bibliography:
Johnson, John W., ed. Historic U.S. Court Cases: An Encyclopedia. 2d. ed. (New York: Routledge, 2001.) Leiter, Samuel and William M. Leiter. Affirmative Action in Antidiscrimination Law and Policy: An Overview and Synthesis. (New York: State University of New York, 2002.) Levy, Jared A. "Blinking at Reality: The Implications of Justice Clarence Thomas's Influential Approach to Race and Education," Boston University Law Review 78 (1998): 575-619. Martin, Waldo E. BROWN V. BOARD OF EDUCATION: A Brief History With Documents. (Boston: Bedford/St. Martin's, 1998.) Ogletree, Charles J. All Deliberate Speed: Reflections on the First Half Century of BROWN V. BOARD OF EDUCATION. (New York: W.W. Norton & Co., 2004.) Spann, Girardeau A. The Law of Affirmative Action: Twenty Five Years of Supreme Court Decisions on Race on Remedies. (New York: New York University Press, 2002.) Tushnet, Mark. A Court Divided: The Rehnquist Court and the Future of Constitutional Law. (New York: W.W. Norton & Company, 2005.) Urofsky, Melvin, and Paul Finkelman. A March of Liberty: A Constitutional History of the United States from 1877 to the Present. (New York: Oxford University Press, 2002.) Gateway Links: |
| Lewis v. Casey
(1996)
Decided by a vote of 8 to 1 Prisoner Rights Conflict:
Opinion:
Context:
In Ex parte Hull (1941), the Court overturned a regulation that prohibited state prisoners from filing a petition for a writ of habeas corpus unless they were approved by the parole board's legal investigator. The Supreme Court believed it should be the courts, rather than the parole board, which would decide whether a petition had been properly drawn and could be heard. Additional prisoner rights were secured through cases such as Talley v. Stevens (1965, standards for corporal punishment); Newman v. Alabama (1972, basic medical care); and Cruz v. Beto (1972, First Amendment religious exercise). Prisoners' rights were significantly broadened by the Court's decision in Bounds v. Smith (1977), which mandated that all state prisons provide "meaningful access to the courts through people trained in the law or through law library collections." However, during the 1990s, American society clamored for a stronger "law and order" stance against crime and criminals. Prison populations grew as political leaders enacted popular "three strikes" legislation requiring imprisonment (sometimes for life) for triple offenders and curtailment of parole. The number of prisoner claims, both serious and frivolous (such as melted prison ice cream), grew to an average 225,000 per year. In 1995, the U.S. Congress passed the Prison Litigation Reform Act, reducing federal court oversight of prisons. Before prisoners could file a civil rights action in federal court, they were required to pursue all administrative remedies such as the inmate grievance system. Poor prisoners who filed three or more petitions that were dismissed as frivolous, malicious, or lacking a claim for which relief may be granted, were barred from filing an "in pauperis petition," which would normally allow them to proceed even though they had no money to pay filing fees. Also under this act, prisoners could be punished for filing malicious claims or presenting false testimony or witness. Impact/Consequences:
In combination with the Prison Litigation Reform Act and the Anti-Terrorism & Effective Death Penalty Act of 1995, Lewis v. Casey has significantly reduced the number of successful cases involving prisoners' claims of denial of access to the courts. The opinion did not, however, disturb earlier precedents, which prohibited prison officials from interfering with access to courts and counsel. But the "injury-in-fact" rule makes it almost impossible for illiterate or mentally ill prisoners to demonstrate that inadequate legal resources have undermined their constitutional rights. Moreover, if a prisoner is unable to use the law library, which may not even exist, how will he or she be able to file the necessary paperwork to ask the courts to examine the inadequacy of the law library? And even if problems are documented, judges are not free to order remedies unless the prisoner can prove that the inadequate legal resources actually harmed him or her. It is very difficult for prisoners to demonstrate that their constitutional rights have been violated without right to counsel, special assistance in using law libraries, access to other prisoners knowledgeable in the law, and adequate law libraries. Quotes:
"Bounds v. Smith did not create an abstract, free-standing right to a law library or legal assistance; rather, the right that Bounds acknowledged was the right of access to the courts. Thus, to establish a Bounds violation, the ``actual injury'' that an inmate must demonstrate is that the alleged shortcomings in the prison library or legal assistance program have hindered, or are presently hindering, his efforts to pursue a nonfrivolous legal claim."
"...the inmate therefore must go one step further and demonstrate that the alleged shortcomings in the library or legal assistance program hindered his efforts to pursue a legal claim. He might show, for example, that a complaint he prepared was dismissed for failure to satisfy some technical requirement which, because of deficiencies in the prison's legal assistance facilities, he could not have known. Or that he had suffered arguably actionable harm that he wished to bring before the courts, but was so stymied by inadequacies of the law library that he was unable even to file a complaint."
"The tools it requires to be provided are those that the inmates need in order to attack their sentences, directly or collaterally, and in order to challenge the conditions of their confinement. Impairment of any other litigating capacity is simply one of the incidental (and perfectly constitutional) consequences of conviction and incarceration."
"...because prisoners are uniquely subject to the control of the State, and because unconstitutional restrictions on the right of access to the courts frustrate the ability of prisoners to identify, articulate, and present to courts injuries flowing from that control, I believe that any prisoner who claims to be impeded by such barriers has alleged constitutionally sufficient injury-in-fact."
"Prisoners' access to the courts is the key constitutional entitlement upon which the effectuation of all other constitutional rights necessarily rests. If prisoners do not have access to the courts and cannot effectively present cases in the litigation process, they have little hope of preventing corrections officials from violating all of their constitutional rights. They also have little hope of using post-appeal processes for raising questions about alleged rights violations by police and prosecutors that contributed to their criminal convictions."
Questions to Ponder:
Selected Bibliography:
Palmer, John W. and Stephen Palmer. Constitutional Rights of Prisoners. 6th ed. (Cincinnati, OH: Anderson Publishing Company, 1999.) Sullivan, Larry E. and Brenda Vogel. "Reachin' Behind the Bars: Library Outreach to Prisoners, 1798-2000." In Libraries to the People: Histories of Outreach, eds. Robert S. Freeman and David M. Hovde. 113-128. (Jefferson, NC: McFarland & Company, Inc., 2003.) Trammell, Rebecca. Werner's Manual for Prison Law Libraries. (Buffalo, NY: William S. Hine & Company, 2004.) Tushnet, Mark. A Court Divided: The Rehnquist Court and the Future of Constitutional Law. (New York: W.W. Norton & Company, 2005.) Gateway Links: |
| Printz v. U.S.
(1997)
Decided by a vote of 5 to 4
Federalism and background checks on handgun purchases. Conflict:
Opinion:
Context:
As James Brady slowly recuperated, he and his wife, Sarah, campaigned for a new federal law that would provide a national to run a background check. In 1992, over 15,000 Americans were murdered with firearms, nearly 12,500 with handguns. Responding to public pressure, Congress passed the "Brady Bill." It imposed a five-day waiting period so that the background check could be conducted and authorized the establishment of an automated, instant check system, Impact/Consequences:
According to the Brady Center for Handgun Control, the Brady Bill background checks have prevented 600,000 sales of guns to individuals in prohibited categories of buyers. In the first two years, 70 percent of rejected gun buyers were indicted or convicted felons. Since the Brady Bill, two more pieces of federal firearms legislation have been added to the books. In 1994, Congress passed the Violent Crime Control and Law Enforcement Act. It banned the sale of a number of semi-automatic assault weapons, put age restrictions on handgun ownership, toughened dealer licensing, and banned possession of firearms of those under restraining orders. Two years later, Congress enacted the Domestic Violence Offender Act of 1996, which prohibited anyone convicted of domestic violence from buying or owning a gun. Nonetheless, Printz remains a significant case on the issue of federal power and states' rights. In fact, the decision shocked constitutional law scholars by dramatically limiting the power of Congress to regulate under the Commerce Clause. The Court's five member majority had earlier ruled unconstitutional the Gun-Free School Zones Act that had made it a crime to possess firearms in or near a school (United States v. Lopez, 1995). In Printz, the Court contended that the federal order for state enforcement of a federal law violated the federal principle of a division of power between federal and states, which Scalia held to be the primary means by which the nation's liberties are protected. He further claimed that the federal government was no more empowered to order state officials to administer federal law than state officials were empowered to administer federal law. This ruling is considered by constitutional scholar Kermit Hall to be "one of the most remarkable assertions by the Court in favor of state authority in the history of the nation." Quotes:
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
"We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the State's officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States' officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policymaking is involved, and no case by case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty."
"Our precedent and our Nation's historical practices support the Court's holding today. The Brady Act violates the Tenth Amendment to the extent it forces States and local law enforcement officers to perform background checks on prospective handgun owners and to accept Brady Forms from firearms dealers. Our holding, of course, does not spell the end of the objectives of the Brady Act. States and chief law enforcement officers may voluntarily continue to participate in the federal program.... The provisions invalidated here, however, which directly compel state officials to administer a federal regulatory program, utterly fail to adhere to the design and structure of our constitutional scheme."
"There is not a clause, sentence, or paragraph in the entire text of the Constitution of the United States that supports the proposition that a local police officer can ignore a command contained in a statute enacted by Congress pursuant to an express delegation of power enumerated in Article I....The provision of the Brady Act that crosses the Court's newly defined constitutional threshold is more comparable to a statute requiring local police officers to report the identity of missing children to the CrimeControl Center of the Department of Justice than to an offensive federal command to a sovereign state. If Congress believes that such a statute will benefit the people of the Nation, and serve the interests of cooperative federalism better than an enlarged federal bureaucracy, we should respect both its policy judgment and its appraisal of its constitutional power."
Questions to Ponder:
Why were background checks on prospective gun buyers important? Was there a national database at the time? Selected Bibliography:
Maveety, Nancy. "Judicial Decision Making as Legal Debate: Printz v. United States 1997." In Creating Constitutional Change: Clashes over Power and Liberty in the Supreme Court, eds. Gregg Ivers and Kevin McGuire. 153-164. (Charlottesville, VA: University of Virginia Press, 2004.) Urofsky, Melvin, and Paul Finkelman, eds. Documents of American Constitutional and Legal History. (New York: Oxford University Press, 2002.) Gateway Links: |
| Bush v. Gore
(2000)
Decided by a vote of 5 to 4
Conflict: On November 7, 2000 over 100 million U.S. citizens went to the polls to elect a new president, either Texas governor George W. Bush (R) or Vice President Albert A. Gore, Jr. (D). During the night, as news organizations switched back and forth in projecting the winner of the election, it became clear that this would be no ordinary election. Although Gore had won the popular vote by 50,999,897 to Bush's 50,546,002, neither candidate had the necessary 270 electoral votes to win the presidency. As the votes in hotly contested states, including New Mexico, Iowa, Oregon, and Wisconsin were resolved, the election boiled down to one state: Florida. The state's governor, Jeb Bush, was the brother of the presidential candidate and both houses of the state legislature were controlled by the Republican Party; the State Supreme Court was controlled by Democratic appointees. On November 8, the Florida Division of Elections reported that Bush had won the state by 1,784 votes, but because the margin of victory was less than .5 percent of the over six million votes cast, there would be an automatic machine recount. The recount found Bush had won, but by a narrower margin, 327 votes. The election law of Florida permitted a candidate to request a manual recount, so Al Gore requested recounts in four Democratic-majority counties, Broward, Miami-Dade, Palm Beach, and Volusia. He argued that manual inspections of punch-card ballots that had not been counted as valid ballots by faulty voting machines might lead to the discovery of legally cast ballots. Florida Secretary of State, Katharine Harris, a Republican and a Bush supporter, announced that she would certify the election results on November 18, and that she would not extend the filing deadline. On November 17, the Florida Supreme Court ordered Harris to accept any manual recount results received by November 26. George Bush appealed to the U.S. Supreme Court in Bush v. Palm Beach. Bush's attorneys argued that the extended vote count violated the state's right to determine the procedures for choosing presidential electors under Article II of the Constitution. The Supreme Court unanimously set aside the extended deadline because of the "considerable uncertainty about the precise grounds for the decision" made by the Florida Supreme Court. Harris certified that Bush had won the election by 537 votes on November 26, 2000. Gore then filed an election contest challenge under Florida law, and the Florida Supreme Court ordered a state-wide manual recount of all punch-card ballots in which a machine failed to register a vote for president. Bush appealed the decision to the U.S. Supreme Court on December 9, and the five most conservative justices on the U. S. Supreme Court issued an emergency injunction that halted the recounting. The Court heard oral arguments and, due to its extraordinary nature, ruled 16 hours later. Opinion:
Context:
A bill to allow the Supreme Court to settle the issue was defeated in the Senate. Most Republicans wanted the President of the Senate to decide the controversy; most Democrats wanted the Democrat-controlled House and the Republican Senate jointly to decide. In December, Congress passed a resolution to establish a joint committee to resolve the disputed election. The committee proposed, Congress passed, and President Ulysses S. Grant signed legislation to create an Electoral Commission consisting of five members of the Supreme Court, five members of the Senate, and five members of the House. There were eight Republicans and seven Democrats. Congress met in joint session, beginning on February 1, 1877, to count the electoral votes. In each of the four contested states, the Electoral Commission voted along party lines, awarding the state to Hayes. Both the Senate and House would have to agree to nullify the Commission. When it became clear that the swing voter, Republican Justice Joseph Bradley, would award the election to Hayes, Democrats attempted a filibuster. With a backroom deal, the filibuster ended and Hayes won the Electoral College 185 votes to Tilden's 184 votes and with it the Presidency. It is generally recognized that the backroom deal involved the agreement by Republicans to end Reconstruction in the former states of the Confederacy in return for Democratic agreement to give the election to Hayes. In 2000, the nation wanted to avoid the obvious voting fraud, corruption, and political shenanigans of the Election of 1876, along with the nearly four months of indecision it had created. This time the decision-making went, not to Congress, but to the Supreme Court. It is also clear, that the controversy witnessed an unprecedented mobilization of political forces by Bush and Gore to block, or promote, the hand recounts. Impact/Consequences: The Supreme Court's decision stopped the recount in Florida. Florida Secretary of State Katharine Harris' certification that George Bush had won Florida by a margin of 537 votes stood. Al Gore conceded the election. At the meeting of the Electoral College, Florida's 25 electors provided Bush with an Electoral College victory over Al Gore of 271 to 266. The nation's 36 day election ordeal was over, however, the Court's opinion remains one of the most controversial ever rendered. In 2001, a group of eight media outlets commissioned the National Opinion Research Center of the University of Chicago to conduct a comprehensive study of the ballots in Florida. The six-month study examined contested ballots in all 67 counties of Florida and concluded that even if the Supreme Court had ruled in Al Gore's favor, in either of the discussed recount scenarios, George Bush would still have won the Florida election and thus the presidency. If the Florida Supreme Court's recount of undervotes had proceeded, Bush would have won by a margin of 493 votes. If Al Gore had succeeded in getting the recount in the four counties he had requested, Bush would have won by 225 votes. On the trickier question of voter intent, poorly designed ballots and voter confusion may have resulted in up to 15,000 ballots spoiled due to double votes on the machines that were not counted. There is also the question of disfranchising potential Gore supporters, according to Gore, by Republican officials at the polling booths. It seems fair to say that more voters went to the polls intending to vote for Al Gore than George Bush. For students of history, the most telling statement regarding the impact of this decision may well be the words of Justice Stevens. He noted that with this decision the nation lost "confidence in the judge as an impartial guardian of the rule of law." Quotes:
"The recount mechanisms implemented in response to the decisions of the Florida Supreme Court do not satisfy the minimum requirement for non-arbitrary treatment of voters necessary to secure the fundamental right. Florida's basic command for the count of legally cast votes is to consider the 'intent of the voter.' Palm Beach County, for example, began the process with a 1990 guideline which precluded counting completely attached chads, switched to a rule that considered a vote to be legal if any light could be seen through a chad, changed back to the 1990 rule, and then abandoned any pretense of a per se rule, only to have a court order that the county consider dimpled chads legal. This is not a process with sufficient guarantees of equal treatment."
"The Court assumes that time will not permit 'orderly judicial review of any disputed matters that might arise.' But no one has doubted the good faith and diligence with which Florida election officials, attorneys for all sides of this controversy, and the courts of law have performed their duties. Notably, the Florida Supreme Court has produced two substantial opinions within 29 hours of oral argument. In sum, the Court's conclusion that a constitutionally adequate recount is impractical is a prophecy the Court's own judgment will not allow to be tested. Such an untested prophecy should not decide the Presidency of the United States. I dissent."
Questions to Ponder:
Selected Bibliography: Boies, David. Courting Justice: From New York Yankees v. Major League Baseball to Bush v. Gore, 1997-2000. (New York: Hyperion, 2004.) Hasen, Richard. The Supreme Court and Election Law: Judging Equality from Baker v. Carr to Bush v. Gore. (New York: New York University Press, 2003.) Johnson, John W., ed. Historic U.S. Court Cases, An Encyclopedia, 2nd ed. (New York: Routledge, 2001.) Goldman, Jerry. Great Arguments in the Supreme Court: Bush v. Gore. (Urbana, IL: University of Illinois Press, 2002.) Lund, Nelson. "The Unbearable Rightness of Bush v. Gore." http:\\www.cardozo.yu.edu/cardlrev/pdf/234lund.pdf Posner, Richard A. Breaking the Deadlock: The 2000 Election, the Constitution, and the Courts. (Princeton: Princeton University Press, 2001.) Tribe, Laurence H., "The Unbearable Wrongness of Bush v. Gore." George Mason Law & Economics Research Paper No. 03-33; Harvard Law School, Public Law Working Paper No. 72. Urofsky, Melvin and Paul Finkelman. A March of Liberty: A Constitutional History of the United States. (New York: Oxford University Press, 2002.) Gateway Links: |
| Atwater v. Lago Vista
(2001)
Decided by a vote of 5 to 4 Equal Justice and Unreasonable Search and Seizure. Battle:
Opinion:
Context:
Gail Atwater lived with her husband, an emergency room doctor, and her children in the north Austin suburb of Lago Vista, population roughly 5,000. A sixteen-year resident, she had left nursing to run a bed-and-breakfast business at a separate building, near Lake Travis. While driving her children home from soccer practice, the children noticed a plastic toy vampire, usually attached by suction cups to the truck window, was missing. She turned around, retracing her route through the residential area at about 15 mph, and told the children to unbuckle themselves so they could look out of the window for the missing toy. This decision followed a number of earlier decisions by the Rehnquist Court favoring broad discretionary authority for police officers. In Whren v. United States (1996), the Court upheld the authority of police officers in unmarked cars to stop drivers for routine traffic offenses. The Court also permitted officers to frisk people whom they see running in "high crime neighborhoods" or in other suspicious circumstances (Illinois v. Wardlow 2000). As the issue of "racial profiling" by law enforcement officers became increasingly controversial, the Court moved to broaden the rights of police officers to make legal an officer's discretionary stops and searches. Impact/Consequences:
During oral arguments, when Justice David Souter asked Atwater's attorney, Robert deCarli, whether arrests for minor offences were a widespread problem, the only example deCarli provided was one of a girl taken into custody in the D.C. Metro subway system for eating french fries. Justice Souter, formerly the attorney general of New Hampshire, believed that safeguards instituted by most states, as well as political accountability, would keep the problem from escalating. Dissenters pointed out that arrests for minor offences are sometimes used as "fishing expeditions" to find incriminating evidence of other crimes. In particular, it was feared that the majority decision would be used by authorities to evade laws against racial profiling and to harass citizens by putting them in jail prior to trial, even if officials could not get them convicted at a trial. Quotes:
"It's not a constitutional violation for a police officer to be a jerk."
"Atwater's arrest satisfied constitutional requirements. It is undisputed that Turek had probable cause to believe that Atwater committed a crime in his presence. Because she admits that neither she nor her children were wearing seat belts, Turek was authorized (though not required) to make a custodial arrest without balancing costs and benefits or determining whether Atwater's arrest was in some sense necessary. Nor was the arrest made in an extraordinary manner, unusually harmful to her privacy or physical interests. Whether a search or seizure is "extraordinary" turns, above all else, on the manner in which it is executed. Atwater's arrest and subsequent booking, though surely humiliating, were no more harmful to her interests than the normal custodial arrest...Accordingly, we confirm today what our prior cases have intimated: the standard of probable cause "applie[s] to all arrests, without the need to ‘balance' the interests and circumstances involved in particular situations." If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender."
"The Fourth Amendment guarantees the right to be free from "unreasonable searches and seizures." The Court recognizes that the arrest of Gail Atwater was a "pointless indignity" that served no discernible state interest, and yet holds that her arrest was constitutionally permissible. Because the Court's position is inconsistent with the explicit guarantee of the Fourth Amendment, I dissent. A full custodial arrest, such as the one to which Ms. Atwater was subjected, is the quintessential seizure. When a full custodial arrest is effected without a warrant, the plain language of the Fourth Amendment requires that the arrest be reasonable."
"Such unbounded discretion carries with it grave potential for abuse. The majority takes comfort in the lack of evidence of "an epidemic of unnecessary minor-offense arrests." But the relatively small number of published cases dealing with such arrests proves little and should provide little solace. Indeed, as the recent debate over racial profiling demonstrates all too clearly, a relatively minor traffic infraction may often serve as an excuse for stopping and harassing an individual. After today, the arsenal available to any officer extends to a full arrest and the searches permissible concomitant to that arrest. An officer's subjective motivations for making a traffic stop are not relevant considerations in determining the reasonableness of the stop. But it is precisely because these motivations are beyond our purview that we must vigilantly ensure that officers' poststop actions--which are properly within our reach--comport with the Fourth Amendment's guarantee of reasonableness. The Court neglects the Fourth Amendment's express command in the name of administrative ease. In so doing, it cloaks the pointless indignity that Gail Atwater suffered with the mantle of reasonableness."
Questions to Ponder:
Do you think Gail Atwater showed good judgment in telling her children to get out of their seat belts to search for a toy? Do you think that Bart Turek showed good judgment in arresting Gail Atwater instead of issuing her a citation? Does it surprise you that a case like this could end up in the Supreme Court of the United States? Explain. Minor crimes--misdemeanors--vary from shoplifting to smoking in prohibited areas, such as subway platforms. Is it practical to say that police may arrest people in some of these cases and not others? How are police supposed to remember all the possible exceptions? Justice O'Connor wrote about the trauma experienced by Atwater's children during her exchange with Officer Turek. Who do you blame for the trauma? In many states, if a child is injured in a car and is found not to be wearing a seat belt, the parent can be charged with neglect or abuse. Were there childrens' rights in this case that were ignored? Why did Gail Atwater believe her Fourth Amendment rights had been violated? Why did the majority of the Supreme Court disagree with her? What problems did the dissenting justices have with the majority opinion? Do you think, given the narrowness of the decision, that it may be overturned? Recently, the singer Brittany Spears was arrested for driving with her infant in her arms while trying to avoid paparazzi. But she was not arrested for violating California's seat belt laws. Do you think that she should have been arrested? Should all people be treated equally? Do you agree with the decision in Atwater? Explain what your decision would have been. Selected Bibliography:
Frase, Richard S., "What Were They Thinking? Fourth Amendment Unreasonableness in Atwater v. City of Lago Vista." Fordham Law Review, Vol. 71, pp. 329-421, November 2002. Garbus, Martin. Courting Disaster: The Supreme Court and the Unmaking of American Law. (New York: Owl Books, 2002.) Greenhouse, Linda, "Divided Justices Back Full Arrests on Minor Charges," New York Times, April 25, 2001. Stutz, Terrence, "Buckling In: Woman Drives Seat Belt Case to Supreme Court," Dallas Morning News, July 3, 2000, p. 23A. Tushnet, Mark. A Court Divided: The Rehnquist Court and the Future of Constitutional Law. (New York: W.W. Norton & Company, 2005.) Gateway Links: |
| Easley v. Cromartie
(2001)
Decided by a vote of 5 to 4 Conflict: In 1990, the decennial census was conducted in the United States. Across the nation voting districts needed to be redrawn to reflect population changes. North Carolina, which had gained a new seat, was under pressure by the federal government to create a "minority-majority" district for African-American voters so they could finally elect, for the first time since Reconstruction, a representative to the U.S. Congress. Legislators also wished to maintain a six-six Democratic/Republican split in the state's U.S. Congressional delegation. The North Carolina state legislature shifted black-majority precincts into the 200-mile long 12th District; voters in the 12th District to the U.S. House of Representatives elected Melvin D. Watt, a black Democrat, in 1992. Although he had fought for voting rights, Duke University law professor Robinson Everett considered racial redistricting to be a violation of the Equal Protection Clause of the Fourteenth Amendment, which made it unconstitutional to establish voting on the basis of race. Everett led the fight against the redistricting plan through three Supreme Court cases between 1993 and 2001. The Supreme Court ruled that North Carolina had improperly redrawn the 12th District because it had used race as the predominant factor in both Shaw v. Reno (1993) and Shaw v. Hunt (1996). In 1997, the North Carolina legislature again redrew the 12th District so that Democratic incumbent Melvin Watt was re-elected, but the adjoining 9th District's white Republican was also elected. Martin Cromartie challenged Governor Michael F. Easley and the legislature on the legality of the redrawn district, again on the basis of the Fourteenth Amendment. The three-judge district court ruled against the plan, which was appealed to the Supreme Court as Easley v. Cromartie. The issue here was whether or not the state had been able to devise a redistricting plan that provided some representation for blacks without being designed strictly along racial lines. Opinion:
Context:
State and local governments passed the Voting Rights Act of 1965 to make the promise of the Fifteenth Amendment a reality to black voters who had been denied the right to vote through literacy tests and other obstacles. Section 5 required that changes in election law be pre-cleared by the federal district court in areas where minority voting rights had been historically violated including a number of North Carolina counties. For this reason, the 12th District redistricting plans had to be submitted to a three-judge district court panel. North Carolina's 12th District, when redrawn in 1992, followed Interstate 85 for 200 miles, sometimes barely wider than the interstate, as it linked urban African-American voters in precincts from Charlotte to Winston-Salem, Greensboro and Durham. The peculiar district was labeled a racial gerrymander. Impact/Consequences:
The conflicting points at issue have to do with that provision of the Voting Rights Act of 1965, which outlawed the actions of state or political subdivisions to abridge the right to vote "on account of race or color." In addition, states of the Confederacy that had historically denied voting rights to blacks were prohibited from making changes that affected the right to vote on account of race or color. The Court's decision in Easley did not resolve the racial dispute in which whites contend that states are discriminating in favor of blacks and blacks assert that states are limiting their rights by blocking the new redistricting efforts. Quotes:
"I have moved Greensboro Black community into the 12th [District], and now need to take . . . 60,000 out of the 12th [District]."
"In a case such as this one where majority-minority districts (or the approximate equivalent) are at issue and where racial identification correlates highly with political affiliation, the party attacking the legislatively drawn boundaries must show at the least that the legislature could have achieved its legitimate political objectives in alternative ways that are comparably consistent with traditional districting principles. That party must also show that those districting alternatives would have brought about significantly greater racial balance."
"As I see it, this inquiry is sufficient to answer the constitutional question because racial gerrymandering offends the Constitution whether the motivation is malicious or benign. It is not a defense that the legislature merely may have drawn the district based on the stereotype that blacks are reliable Democratic voters."
Questions to Ponder:
Selected Bibliography:
Swain, Carol M. Black Faces, Black Interests: African-Americans in Congress. (Cambridge, MA: Harvard University Press, 1995.) Yarbrough, Tinsley E. Race and Redistricting: The Shaw-Cromartie Cases. (Lawrence, KS: University Press of Kansas, 2002.) Gateway Links: |
| Grutter v. Bollinger
(2003)
Decided by a vote of 5 to 4
Conflict:
Was the University of Michigan Law School's goal of achieving a diverse student body a violation of the Equal Protection Clause of the Fourteenth Amendment? The district court ruled in 2001 that the Law School's admissions policy was in violation of the Fourteenth Amendment; in May 2002 the Sixth Circuit Court of Appeals reversed the lower court, upholding the admissions policy. The case was argued before the Supreme Court on April 1, 2003; recordings of the oral arguments were released the same day, only the second time this has been done in the Court's history. (The first time was Bush v. Gore, 2000.) Opinion:
Context:
Numerous affirmative action cases have followed the Bakke decision. The Court has considered some affirmative action cases that have involved set-aside money to minority contractors as a form of affirmative action. In Richmond v. J. R. Croson (1989), the Supreme Court ruled that racial set-asides could remedy only the discrimination practiced by the governmental body approving the set-aside, not general societal discrimination against a minority, thus narrowing what affirmative actions are permissible. It also said that any race-based action by government should meet a "strict scrutiny" test under the Fourteenth Amendment, meaning that the courts would look at such actions carefully. The following year in Metro Broadcasting Inc. v. FCC (1990), the Supreme Court said that an "intermediate scrutiny" could be applied to "benign" classifications, meaning those not using numbers or quotas. The Court then reversed its Metro Broadcasting decision in Adarand Constructors v. Pena (1995), returning to the "strict scrutiny test." In 2003, the Supreme Court considered two challenges to admissions programs for the first time since Bakke. Both involved the University of Michigan: Grutter v. Bollinger (2003), which involved the law school and Gratz v. Bollinger (2003), which involved undergraduate admissions. The Court upheld the admission program for the law school but rejected the program at the undergraduate level. In the latter case, the university assigned 20 points to all applicants from an underrepresented minority group, or 20 percent of the 100 points required for admission. The Court struck down the undergraduate admissions policy by a vote of 6 to 3, because of its rigid use of numbers with no individual distinction among the applicants. Of all the Justices, only Ruth Bader Ginsburg voted to hold both admission programs constitutional. Impact/Consequences:
In her dissent, Justice Ginsburg criticized the majority for failing to distinguish between the differences in official race classifications that promote inclusion of minorities from those that promote the exclusion of these minorities. She held that race-consciousness in admission policies is constitutional (regardless of its form) when it does not "trammel unduly upon the opportunities of others or interfere too harshly with legitimate expectations of persons in once-preferred groups." Like in the Bakke case, the decisions in Grutter and Gratz have produced significant confusion about the legal parameters and applicability of affirmative action as policy for providing equal justice to minorities. Quotes:
"We are mindful, however, that ‘[a] core purpose of the Fourteenth Amendment was to do away with all governmentally imposed discrimination based on race.' Accordingly, race-conscious admissions policies must be limited in time. This requirement reflects that racial classifications, however compelling their goals, are potentially so dangerous that they may be employed no more broadly than the interest demands. Enshrining a permanent justification for racial preferences would offend this fundamental equal protection principle. We see no reason to exempt race-conscious admissions programs from the requirement that all governmental use of race must have a logical end point."
"However strong the public's desire for improved education systems may be, it remains the current reality that many minority students encounter markedly inadequate and unequal educational opportunities. Despite these inequalities, some minority students are able to meet the high threshold requirements set for admission to the country's finest undergraduate and graduate educational institutions. As lower school education in minority communities improves, an increase in the number of such students may be anticipated. From today's vantage point, one may hope, but not firmly forecast, that over the next generation's span, progress toward nondiscrimination and genuinely equal opportunity will make it safe to sunset affirmative action."
"From 1995 through 2000, the Law School admitted between 1,130 and 1,310 students. Of those, between 13 and 19 were Native American, between 91 and 108 were African-Americans, and between 47 and 56 were Hispanic. If the Law School is admitting between 91 and 108 African-Americans in order to achieve "critical mass," thereby preventing African-American students from feeling "isolated or like spokespersons for their race," one would think that a number of the same order of magnitude would be necessary to accomplish the same purpose for Hispanics and Native Americans....In order for this pattern of admission to be consistent with the Law School's explanation of "critical mass," one would have to believe that the objectives of "critical mass" offered by respondents are achieved with only half the number of Hispanics and one-sixth the number of Native Americans as compared to African-Americans. But respondents offer no race-specific reasons for such disparities. Instead, they simply emphasize the importance of achieving "critical mass," without any explanation of why that concept is applied differently among the three underrepresented minority groups."
"Unlike a clear constitutional holding that racial preferences in state educational institutions are impermissible, or even a clear anticonstitutional holding that racial preferences in state educational institutions are OK, today's Grutter-Gratz split double header seems perversely designed to prolong the controversy and the litigation.... I do not look forward to any of these cases. The Constitution proscribes government discrimination on the basis of race, and state-provided education is no exception."
"The majority of blacks are admitted to the Law School because of discrimination, and because of this policy all are tarred as undeserving. This problem of stigma does not depend on determinacy as to whether those stigmatized are actually the "beneficiaries" of racial discrimination. When blacks take positions in the highest places of government, industry, or academia, it is an open question today whether their skin color played a part in their advancement. The question itself is the stigma--because either racial discrimination did play a role, in which case the person may be deemed "otherwise unqualified," or it did not, in which case asking the question itself unfairly marks those blacks who would succeed without discrimination. Is this what the Court means by "visibly open"?"
"Whites scoring between 163 and 167 on the LSAT are routinely rejected by the Law School, and thus whites aspiring to admission at the Law School have every incentive to improve their score to levels above that range. Blacks, on the other hand, are nearly guaranteed admission if they score above 155. As admission prospects approach certainty, there is no incentive for the black applicant to continue to prepare for the LSAT once he is reasonably assured of achieving the requisite score. It is far from certain that the LSAT test-taker's behavior is responsive to the Law School's admissions policies. Nevertheless, the possibility remains that this racial discrimination will help fulfill the bigot's prophecy about black underperformance--just as it confirms the conspiracy theorist's belief that "institutional racism" is at fault for every racial disparity in our society."
Questions:
Selected Bibliography: Anderson, Terry. The Pursuit of Fairness: A History of Affirmative Action. (New York: Oxford University Press, 2004.) Caplan, Lincoln. Up Against the Law: Affirmative Action and the Supreme Court. (New York: Century Foundation Press, 1997.) Curry, George and West, Cornel, eds. The Affirmative Action Debate. (Boston: Addison, Wesley Publishing Company, 1996.) Edley, Christopher, Jr. Not All Black and White: Affirmative Action, Race, and American Values. (New York: Farrar, Straus, and Giroux, 1998.) Gurin, Patrician, Jeffrey S. Lehman and Earl Lewis. Defending Diversity: Affirmative Action at the University of Michigan. (Ann Arbor, MI: University of Michigan Press, 2004.) Stohr, Greg. A Black and White Case: How Affirmative Action Survived Its Greatest Legal Challenge. (Princeton, NJ: Bloomberg Press, 2004.) Gateway Links: |
| GA v. Ashcroft
(2003)
Decided by a vote of 5 to 4 Conflict:
Opinion:
Context:
Impact/Consequences:
Quotes:
"The ability of minority voters to elect a candidate of their choice is important but often complex in practice to determine. In order to maximize the electoral success of a minority group, a State may choose to create a certain number of "safe" districts, in which it is highly likely that minority voters will be able to elect the candidate of their choice. Alternatively, a State may choose to create a greater number of districts in which it is likely--although perhaps not quite as likely as under the benchmark plan--that minority voters will be able to elect candidates of their choice. Section 5 does not dictate that a State must pick one of these methods of redistricting over another. Either option ‘will present the minority group with its own array of electoral risks and benefits,' and presents ‘hard choices' about what would truly ‘maximize' minority electoral success."
"The purpose of the Voting Rights Act is to prevent discrimination in the exercise of the electoral franchise and to foster our transformation to a society that is no longer fixated on race. As Congressman Lewis stated: ‘I think that's what the [civil rights] struggle was all about, to create what I like to call a truly interracial democracy in the South. In the movement, we would call it creating the beloved community, an all-inclusive community, where we would be able to forget about race and color and see people as people, as human beings, just as citizens.' While courts and the Department of Justice should be vigilant in ensuring that States neither reduce the effective exercise of the electoral franchise nor discriminate against minority voters, the Voting Rights Act, as properly interpreted, should encourage the transition to a society where race no longer matters: a society where integration and color-blindness are not just qualities to be proud of, but are simple facts of life."
"Section 5, after all, was not enacted to address abstractions. It was enacted ‘to shift the advantage of time and inertia from the perpetrators of the evil to its victim,' and the State of Georgia was made subject to the requirement of preclearance because Congress ‘had reason to suppose' it might ‘try ... to evade the remedies for voting discrimination' and thus justifies Section 5's ‘uncommon exercise of congressional power.' Section 5 can only be addressed, and the burden to prove no retrogression can only be carried, with evidence of how particular populations of voters will probably act in the circumstances in which they live. The State has the burden to convince on the basis of such evidence. The District Court considered such evidence: it received testimony, decided what it was worth, and concluded as the trier of fact that the State had failed to carry its burden. There was no error, and I respectfully dissent."
Questions to Ponder:
Selected Bibliography:
Swain, Carol M. Black Faces, Black Interests: African-Americans in Congress. (Cambridge, MA: Harvard University Press, 1995.) Gateway Links: |