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? |