Time Line: The Court and Young People

Battle:
Instead of being able to walk seven blocks to her neighborhood school, third-grade student Linda Brown had to walk a mile, through a railroad switchyard, to attend an all-black elementary school. When her neighborhood school (one of eighteen all-white elementary schools in Topeka, Kansas) rejected her father's attempt to enroll her, Linda's dad, 32-year-old railroad welder Oliver Brown, asked the local branch of the National Association for the Advancement of Colored People (NAACP) for help.

Joined by a dozen other parents who had been unable to enroll their children, the case was argued at the U.S. District Court for Kansas on June 25-26, 1951. Although the court concluded that the Topeka curriculum was not equal, it believed it could not overturn the nearly 60-year-old precedent established by Plessy v. Ferguson, so it ruled against Brown. Although the strategy to challenge segregation in the courts had been conceived in large part by NAACP lawyer Charles H. Houston, dean of the Howard University law school, Houston's health was failing, so Brown and four allied cases from South Carolina, Virginia, the District of Columbia and Delaware (Briggs v. Elliot, Davis v. County School Board of Prince Edward County, Virginia, Bolling v. Sharpe, and Gebhart v. Belton) were argued by a team of lawyers. This team included the NAACP's Robert Carter, Jack Greenberg, George C. Hayes, James M. Nabrit, and Thurgood Marshall (who would later become the first African-American justice of the Supreme Court.)

Oliver Brown's case was first argued before the United States Supreme Court on December 9, 1952. Meeting afterwards, Chief Justice Fred Vinson saw that four justices would vote to overturn Plessy, two would vote to sustain it, and three (including Vinson) were reluctant to overturn Plessy since the precedent was so long established. The court also had questions about whether the Supreme Court should interfere with the political will of over twenty state legislatures (as well as the U.S. Congress in the District of Columbia), which supported segregated schools. Even if the Court overturned Plessy, if the opinion was closely split, the decision might have disastrous results. Justice Felix Frankfurter came up with the idea to stall the decision by asking the lawyers to reappear for a second round of arguments the next term of the Supreme Court. The lawyers would address five questions including three central ones:

• Did the framers of the Fourteenth Amendment in the Reconstruction-era U.S. Congress and the state legislatures, which approved the amendment, intend to abolish segregation?
• If the Fourteenth Amendment had intended to abolish segregation, was it within the power of the judiciary branch to remedy the inequity?
• If the Court decided it had the power to abolish segregation, what sort of decree would it use to implement the decision?

Shortly before the October term of 1953 began, Chief Justice Vinson had a heart attack and died. He was replaced by Chief Justice Earl Warren. Arguments for the second round of Brown v. Board of Education were heard in December 1953. Warren drafted a short, unemotional, non-judgmental opinion, largely free of legalistic jingo, to which every justice agreed.

Opinion:
The Supreme Court announced its unanimous opinion on May 17, 1954 declaring that segregated schools were inherently unequal and violated the Equal Protection Clause of the Fourteenth Amendment. The lawyers in the case appeared before the Court again to argue the best means for implementing the high Court's decision. On May 31, 1955 the Court issued an enabling decision ordering U.S. District Courts to supervise the integration of public schools "with all deliberate speed."

Context:
When Congressman John A. Bingham of Ohio drafted the Fourteenth Amendment in 1866, he intended the amendment to guarantee equal civil and legal rights to the African-American citizens created by the first clause of the amendment. Adopted in 1868, the Fourteenth Amendment would be joined by the Fifteenth Amendment (ratified in 1870 which granted the right to vote to black men) and the Civil Rights Act of 1875, which made it illegal for individuals to deny "the full and equal enjoyment of any of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters and other places of pubic amusement; subject only to the conditions and limitations established by law, and applicable alike to citizens of every race and color." While a few sponsors may have envisioned an end to segregation, most representatives were concerned only with the civil and legal rights of African Americans, not their social equality or economic and educational opportunities.

Supreme Court decisions in the Slaughter House Cases (which determined that the Fourteenth Amendment protected only those rights granted to the citizens by the U.S. government, not the state government, 1872), and in five 1883 decisions overturned the Civil Rights Act of 1875 and undercut the civil and legal protections to African Americans in the Fourteenth and Fifteenth Amendments. All impediments to racial discrimination having been cleared away, the decision in Plessy v. Ferguson (1896), which upheld a Louisiana law requiring railroads to place passengers of different races into separate railroad cars, provided the legal foundation for racial segregation in the United States. Justice Henry Brown of Michigan delivered the majority opinion in Plessy, declaring: "We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it." The lone dissenter, conservative Justice John Marshall Harlan of Kentucky sharply warned that the decision would allow the states "by sinister legislation, to interfere with the blessings of freedom; to regulate civil rights common to all citizens, upon the basis of race; and to place in a condition of legal inferiority a large body of American citizens...." Harlan's vision was accurate and Jim Crow laws proliferated throughout the United States in the half-century following Plessy.

In the case of Kansas, state law allowed cities with a population of greater than 15,000 to segregate elementary and junior high schools. Although high schools were integrated, most extracurricular programs (clubs, sports teams) were racially segregated. The Supreme Court of Kansas ordered the state to desegregate junior high schools in Graham v. Board of Education of Topeka (1941). However, elementary schools were still segregated when Linda Brown started school.

Impact/Consequences: The impact of Brown v. Board of Education of Topeka on subsequent Supreme Court decisions, on American law, and on American society would be difficult to overstate. It is a landmark opinion of the magnitude of Marbury v. Madison and other decisions of the Marshall Court, or the Taney Court's Dred Scott decision. 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, Freeman v. Pitts in 1992, and Missouri v. Jenkins in 1995) have led to the release of many school districts from lower court desegregation decrees, although nearly 100 school systems remain under court-ordered plans.

The Executive Branch, in the persons of Dwight D. Eisenhower, John F. Kennedy, and Lyndon B. Johnson used the full authority and power of the office of the President of the United States to enforce the decisions of the Supreme Court, from sending in federal troops to integrate Central High School in Little Rock, Arkansas to working behind the scenes to secure Congressional approval of the Civil Rights Act of 1964, the Voting Rights Act of 1965, and the Fair Housing Act of 1968. These civil rights measures passed by the Legislative Branch not only worked to end discrimination against African Americans but ended discrimination against any American on the basis of race, color, national origin, religion, or sex. Brown was the wellspring for many groups struggling against inequality including women, Americans with disabilities, the aged, and homosexuals. The half-century legacy of the Brown decision continues to echo through American society and jurisprudence for the present and the foreseeable future.

Quotes:
"The object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law, but in the nature of things it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political equality, or a commingling of the two races upon terms unsatisfactory to either. Laws permitting, and even requiring, their separation in places where they are liable to be brought into contact do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police power. The most common instance of this is connected with the establishment of separate schools for white and colored children, which has been held to be a valid exercise of the legislative power even by courts of States where the political rights of the colored race have been longest and most earnestly enforced..."
Justice Henry Brown, 1896 Plessy v. Ferguson opinion

"In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott case ... The present decision, it may well be apprehended, will not only stimulate aggressions, more or less brutal and irritating, upon the admitted rights of colored citizens, but will encourage the belief that it is possible, by means of state enactments, to defeat the beneficent purposes which the people of the United States had in view when they adopted the recent amendments of the Constitution, by one of which the blacks of this country were made citizens of the United States and of the States in which they respectively reside, and whose privileges and immunities, as citizens, the States are forbidden to abridge."
Justice John Marshall Harlan, 1896 Plessy v. Ferguson dissent

"...we lived in an integrated neighborhood and I had all of these playmates of different nationalities. And so when I found out that day that I might be able to go to their school, I was just thrilled, you know. And I remember walking over to Sumner School with my dad that day and going up the steps of the school and the school looked so big to a smaller child. And I remember going inside and my dad spoke with someone and then he went into the inner office with the principal and they left me out ... to sit outside with the secretary. And while he was in the inner office, I could hear voices and hear his voice raised, you know, as the conversation went on. And then he immediately came out of the office, took me by the hand and we walked home from the school. I just couldn't understand what was happening because I was so sure that I was going to go to school with Mona and Guinevere, Wanda, and all of my playmates."
Linda Brown Thompson, interview in 2004 PBS documentary, Black/White and Brown

"I do not think I would change a single word in the memoranda you gave me this morning. The two draft opinions meet my idea exactly. You have done a beautiful job."
--Justice William O. Douglas, May 11, 1954, memorandum to Chief Justice Earl Warren

"In approaching this problem, we cannot turn the clock back to 1868 when the Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written. We must consider public education in the light of its full development and its present place in American life throughout the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws. Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms."
--Chief Justice Earl Warren, May 17, 1954 Brown v. Board of Education opinion

"We conclude that in the field of public education the doctrine of 'separate but equal' has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment."
--Chief Justice Earl Warren, May 17, 1954 Brown v. Board of Education opinion

"It is ordered and adjudged by this Court that the judgment of the District Court in the cause be, and the same is hereby reversed with costs; and that this cause be, and the same is hereby, remanded to the said District Court to take such proceedings and enter such orders and decrees consistent with the opinions of this Court as are necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to this case."
Chief Justice Earl Warren, May 31, 1955 Brown v. Board of Education enabling decision

"Dear Chief: This is a day that will live in glory. It is also a great day in the history of the Court, and not in the least for the course of deliberation which brought the result. I congratulate you."
Justice Felix Frankfurter, May 17, 1954 note to Chief Justice Earl Warren

"For all men of good will May 17, 1954, came as a joyous daybreak to end the long night of enforced segregation."
Rev. Dr. Martin Luther King, Jr., 1960 address to the Urban League

Questions to Ponder:
Do you think it was the original intent of the Reconstruction-era U.S. Congress and state legislatures to end segregation and racial discrimination through the Fourteenth Amendment? Why do courts sometimes need to look beyond "original intent" when determining what is constitutional and what is not?

Like many courts, the Supreme Court often operates on the principle of stare decisis, allowing prior court decisions to operate as binding precedent unless there is strong reason to overturn a decision. How did this principle hurt civil rights with Plessy? How does it help civil rights with Brown?

Brown, of course, dealt with integration of the public schools. Do you think if the case had revolved around integration of, for example, restaurants and hotels, that the impact would have been as great?

The Court enabling decision said schools should integrate, "with all deliberate speed." Should the Court have been more specific?

Think about the ways that the decision in Brown has had a direct or indirect impact upon your life. Do you think it was a turning point in American history?

Since Brown the Supreme Court has decided dozens of other court cases. Have they diluted the decision? What is the status of desegregation of American public schools today?

Selected Bibliography:
Armor, David J. Forced Justice: School Desegregation and the Law. (New York: Oxford University Press, 1995).

Cottrol, Robert J., Raymond T. Diamond and Leland B. Ware. BROWN V. BOARD OF EDUCATION: Caste, Culture, and the Constitution. (Lawrence, KS: University Press of Kansas, 2003.)

Dudley, M. E. Brown v. Board of Education (1954). (New York: Twenty-First Century Books, 1994.)

Forman, J. A. Law and Disorder. (New York: Thomas Nelson, Inc., 1972.)

Goode, S. The Controversial Court, Supreme Court Influences on American Life. (New York: Julian Messner, 1982.)

Irons, Peter. Jim Crow's Children: The Broken Promise of the BROWN Decision (New York: Viking, 2002.)

Kluger, Richard. Simple Justice: The History of BROWN V. BOARD OF EDUCATION and Black America's Struggle for Equality (New York: Vintage Books, 1977.)

Martin, Waldo E. BROWN V. BOARD OF EDUCATION: A Brief History With Documents. (Boston: Bedford/St. Martin's, 1998.)

Morrison, Toni. Remember: The Journey to School Integration (Boston: Houghton-Mifflin, 2004.)

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.)

Tushnet, Mark V. The NAACP's Legal Strategy against Segregated Education, 1925-1950. (Chapel Hill, NC: University of North Carolina Press, 1987.)

Wilkinson, J. Harvie. From BROWN to BAKKE: The Supreme Court and School Integration, 1954-1978. (New York: Oxford University Press, 1979.)

Gateway Links:
http://www.abanet.org/brown/home.html
http://www.brownat50.org
http://caselaw.lp.findlaw.com/scripts/getcase.p...
http://www.cr.nps.gov/nr/travel/civilrights
http://www.jimcrowhistory.org/home.htm
http://brownvboard.org/index.htm
http://www.loc.gov/exhibits/brown/brown-brown.html
http://memory.loc.gov/ammem/aaohtml/exhibit/aop...
http://www.ourdocuments.gov/doc.php?flash=true&...
http://www.archives.gov/education/lessons/brown...
http://www.oyez.org/oyez/resource/case/51
http://www.landmarkcases.org/brown/home.html
http://www.law.umkc.edu/faculty/projects/ftrial...
http://www.voicesofcivilrights.com/

Battle:
In June 1964 an Arizona woman received an obscene phone call placed by two boys, one of whom was fifteen-year-old Gerald Francis Gault. Gault was on probation for having been in the company of another boy who had pick-pocketed a woman. Arrested by the county sheriff, he was taken to a Children's Detention Home without any effort made to contact his parents, who were working. The following day, at Juvenile Court, the assistant probation officer filed a petition to have Gault declared a juvenile delinquent and placed in the State Industrial School until he was twenty-one. Gerald's parents were not told about the petition at a second Juvenile Court hearing, and only learned of it over two months later at the habeas corpus hearing. Because no appeal was permitted by Arizona law in juvenile cases, Gault's six-year commitment was challenged by his parents through a writ of habeas corpus filed with the Supreme Court of Arizona and was referred by it to the Supreme Court as In re Gault ("in re" is the Latin phrase meaning, "in regard to.")

Opinion:
A wide majority of the justices of the Supreme Court decided that Arizona's juvenile court system had failed to provide adequate notice of charges, denied Gault the right to counsel, the right of confrontation and privileges against self-incrimination and cross-examination, and also denied him the right of appellate review and access to a transcript of proceedings. All were violations of procedural safeguards specified in the Fifth and Sixth Amendments. The Supreme Court's unambiguous opinion declared that the Fourteenth Amendment and Bill of Rights were not for adults alone.

Context:
Prior to the early Nineteenth century, minors involved in the criminal justice system were typically charged once they were old enough to form criminal intent (around the age of seven) and received adult punishment when they were capable of mature reasoning (around the age of fourteen). In the early 1800s, reform schools emerged as an option for judges who did not wish to place juveniles in correctional institutions (education being viewed as necessary for a young person to reform). In 1850, the Ohio State Reform School was the first reformatory to provide vocational training. Industrial schools (such as the one Gerald Gault was sent to in the 1960s) were considered a progressive step since they were designed to spare juveniles from the hard labor, like chain gangs, used as punishment in adult institutions. The state intended that industrial school would prepare juveniles for employment as productive members of society at the end of their sentences. For those juveniles not sent to reform or industrial school, the Society for the Prevention of Juvenile Delinquency urged separation of youthful offenders from adult convicts in prison and crusaded for the establishment of a completely separate juvenile court system. The first juvenile court was established in Cook County, Illinois in 1899; by 1925, all but two states had juvenile courts.

Although the juvenile court system was intended to protect children from abuses, it unwittingly developed problems of its own. If Gerald had been eighteen, an adult, the maximum sentence he would have received would have been a fine of $5-$50.00, or a maximum of two months in prison, as opposed to the six-year term the juvenile court meted out.

Impact/Consequences:
In the words of Robert Mnookin, "Gault has served as a wellspring for the development of the constitutional rights of minors....Gault represented the first unequivocal holding that young people, as individuals, have constitutional rights of their own." Going beyond Meyer, Pierce, and Yoder, which recognized competing rights of parents and the government in the protection of children, the Supreme Court, through Gault, established that there was a third party in the tug-of-war that needs to be considered: young people have their own constitutional rights independent of the family and the state. The impact of Gault extends beyond juvenile court procedures to cases involving the rights of children as students in schools, to receive medical treatment, to have a voice in divorce custody hearings and in abuse and neglect cases, and to due process in non-criminal cases. In re Gault has been cited in over 250 Supreme Court decisions to date.

Quotes:
"Q. All right, Now, judge, would you tell me under what section of the law or tell me under what section of--of the code you found the boy delinquent?

A. Well, there is a--I think it amounts to disturbing the peace. I can't give you the section, but I can tell you the law, that when one person uses lewd language in the presence of another person, that it can amount to--and I consider that when a person makes it over the phone, that it is considered in the presence, I might be wrong, that is one section. The other section upon which I consider the boy delinquent is Section8-201, Subsection (d), habitually involved in immoral matters."
--Judge Robert E. McGhee, August 17, 1964 testimony at habeas corpus hearing

"Gerald's father was not there. He was at work out of the city. Mrs. Cook, the complainant, was not there. No one was sworn at this hearing. No transcript or recording was made. No memorandum or record of the substance of the proceedings was prepared.... Under our Constitution, the condition of being a boy does not justify a kangaroo court."
--Justice Abe Fortas, 1967 In re Gault opinion

"...neither the Fourteenth Amendment nor the Bill of Rights is for adults alone."
--Justice Abe Fortas, 1967 In re Gault opinion

"Where a person, infant or adult, can be seized by the State, charged, and convicted for violating a state criminal law, and then ordered by the State to be confined for six years, I think the Constitution requires that he be tried in accordance with the guarantees of all the provisions of the Bill of Rights made applicable to the States by the Fourteenth Amendment."
--Justice Hugo Black, 1967 In re Gault concurring opinion

"And to impose the Court's long catalog of requirements upon juvenile proceedings in every area of the country is to invite a long step backwards into the nineteenth century. In that era there were no juvenile proceedings, and a child was tried in a conventional criminal court with all the trappings of a conventional criminal trial. So it was that a 12-year-old boy named James Guild was tried in New Jersey for killing Catharine Beakes. A jury found him guilty of murder, and he was sentenced to death by hanging. The sentence was executed. It was all very constitutional."
--Justice Potter Stewart, 1967 In re Gault dissent

Questions to Ponder:
List the procedural protections of the Bill of Rights that had not been given to Gerald Gault as a juvenile. Was this fair? What if instead of six rights, only one had been violated. Would that have made a difference?

Many of the justices were disturbed by the vast difference between the sentence Gerald received as a fifteen-year-old in contrast to what he would have received had he been eighteen. Should penalties for juvenile crime be less, more or the same as adults? Does that mean that young people should be considered as responsible for their actions as adults?

What if the crime is murder? For example, Billy the Kid is believed to have committed his first murder at age seventeen--should the law treat his first murder differently than those he committed after he turned eighteen (he is believed to have died between the ages of 19-21 having committed or been involved in twenty murders.)

Should juveniles accused of a crime always go through same procedures in the justice system as adults? This would mean that certain advantages, such as the secrecy of their names and sealing of certain records, would be lost--is that desirable? Do juvenile and family courts have different objectives than regular courts?

Does age become an issue in considering this problem? Should a ten-year-old be treated differently than a seventeen-year-old? Should the courts define a national "age of majority"? What age is appropriate? Should it be defined only for criminal cases, or also for other issues such as work, licensing to drive, drinking, and compulsory school attendance? If defined for all instances, does that undercut child neglect and abuse laws?

In addition to Gerald's rights, were his parents also deprived of rights in this case (and if so, which rights)?

Just as the rights of adults under the First and Fourteenth Amendment are subject to limits, so are the rights of children. However, are the limitations the same? Does the free speech protection of an adult performer to utter lewd remarks extend to student performers in a school-sponsored activity?

Selected Bibliography:
Krisberg, Barry, and James F. Austin. Reinventing Juvenile Justice. (Newbury Park, CA: Sage, 1993.)

Ramsey, Sarah H., and Douglas E. Abrams. Children and the Law in a Nutshell. (St. Paul, MN: West Group, 2001.)

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.)

van Geel, Tyll. The Courts and American Education Law. (Buffalo: Prometheus Books, 1987.)

Gateway Links:
http://www.abanet.org/publiced/lawday/schools/l...
http://caselaw.lp.findlaw.com/scripts/getcase.p...
http://www.statelib.lib.in.us/www/ihb/publicati...
http://www.landmarkcases.org/gideon/rights.html
http://www.oyez.org/oyez/resource/case/181

Battle:
Robert Meyer, a teacher at the Zion Evangelical Lutheran parochial school in Hamilton County, Nebraska taught core subjects in English. However, on May 25, 1920, despite the presence of a state authority, Meyer used a Biblical story from his German Bible to teach ten-year-old Raymond Parpart how to read the language so he could participate in his German-speaking family's devotions, and provided him religious instruction. Meyer was charged with violating a 1919 Nebraska law prohibiting foreign language instruction in public and private schools that further stated, "Languages, other than the English language, may be taught as languages only after a pupil shall have attained and successfully passed the eighth grade as evidenced by a certificate of graduation issued by the county superintendent of the county in which the child resides." He was found guilty and fined $25. Meyer appealed to the Supreme Court claiming that his liberties, along with the rights of the children's parents, which should have been protected by the Fourteenth Amendment, had been violated.

Opinion:
In Meyer v. Nebraska (1923) the majority found that, while the Constitution does not enumerate a parent's right to have their children learn a foreign language, education has historically been a matter of supreme importance to the American people, citing the Northwest Ordinance of 1787. The Court also asserted that parents had a natural duty to try to educate their young, but that Nebraska legislature had usurped this right. They concluded that Nebraska's law interfered with the opportunity of children to receive education. The law also interfered with the employment of all modern language teachers, a protected property interest. Thus, the Supreme Court ruled Nebraska's law to be in violation of the Due Process Clause of the Fourteenth Amendment and therefore, unconstitutional.

Context:
On April 6, 1917, the United States declared war upon Germany, three years after the outbreak of World War I in Europe. The United States entered the war largely because of Germany's policy of unrestricted submarine warfare on neutral U.S. merchant ships, British anti-German propaganda, and publication of the Zimmerman telegram (a German proposal to Mexico encouraging the Mexicans to attack the United States.) Anti-German sentiment grew to a level that "frankfurters" were renamed "hot dogs," "hamburgers" were changed to "Salisbury steak," "sauerkraut" was renamed "liberty cabbage," and "German Shepherd Dogs" became "Alsatians." German individuals and businesses changed their name, for example the Bismarck Hotel in Chicago, which became the Hotel Randolph. German music was dropped from symphonic repertoires. In Illinois, a lynch mob hanged outspoken German immigrant Robert Prager. Along with a number of other states, from Oklahoma to Ohio, Nebraska passed a law banning the teaching of German. However, in Nebraska's case the law was directed against all foreign languages under the theory that all unassimilated immigrants posed a threat. In the years following World War I, it is estimated that 18,000 people were charged nation-wide with violating German language statutes.

Impact/Consequences:
Meyer v. Nebraska was one of the earliest cases in which the Supreme Court found that citizens had non-enumerated liberty rights. It has been a precedent in educational rights cases, such as Pierce v. Society of Sisters, which are the basis of private, parochial, home schools, and school vouchers. Meyer is also seminal in privacy cases, such as the Griswold v. Connecticut contraception case and Roe v. Wade.

Quotes:
"If it is within the police power of the state ... to legislate respecting housing conditions in crowded cities, to prohibit dark rooms in tenement houses, to compel landlords to place windows in their tenements which will enable their tenants to enjoy the sunshine, it is within the police power of the state to compel every resident of Nebraska to so educate his children that the sunshine of American ideals will permeate the life of the future citizens of this republic. A father has no inalienable constitutional right to rear his children in physical, moral or intellectual gloom."
--Ora Spillman, Attorney General for the State of Nebraska, 1923 Meyer v. Nebraska brief and arguments

"The Court has never attempted to define, with exactness, the liberty guaranteed by the Fourteenth Amendment. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men. Certainly education and the pursuit of knowledge should be encouraged. Mere knowledge of the German language cannot be looked upon as harmful. Meyer's right to teach, and the right of parents to hire him so to teach were within the liberty of this Amendment."
--Justice James McReynolds, 1923 Meyer v. Nebraska opinion

"The protection of the Constitution extends to all, to those who speak other languages as well as to those born with English on the tongue. Perhaps it would be highly advantageous if all had ready understanding of our ordinary speech, but this cannot be coerced by methods which conflict with the Constitution-a desirable end cannot be promoted by prohibited means."
--Justice James McReynolds, 1923 Meyer v. Nebraska opinion

"We all agree, I take it, that it is desirable that all the citizens of the United States should speak a common tongue, and therefore that the end aimed at by the statute is a lawful and proper one. The only question is whether the means adopted deprive teachers of the liberty secured to them by the Fourteenth Amendment. It is with hesitation and unwillingness that I differ from my brethren with regard to a law like this but I cannot bring my mind to believe that in some circumstances, and circumstances existing it is said in Nebraska, the statute might not be regarded as a reasonable or even necessary method of reaching the desired result. The part of the act with which we are concerned deals with the teaching of young children. Youth is the time when familiarity with a language is established and if there are sections in the State where a child would hear only Polish or French or German spoken at home I am not prepared to say that it is unreasonable to provide that in his early years he shall hear and speak only English at school. But if it is reasonable it is not an undue restriction of the liberty either of teacher or scholar. No one would doubt that a teacher might be forbidden to teach many things, and the only criterion of his liberty under the Constitution that I can think of is "whether, considering the end in view, the statute passes the bounds of reason and assumes the character of a merely arbitrary fiat."
--Justice Oliver Wendell Holmes, Jr., 1923 Meyer v. Nebraska dissent

"The Court's 1923 decision in his favor was the precedent for the Pierce decision two years later and is seen, by legal historians, as marking a decisive turn of the Court toward limiting the power of government to infringe upon individual freedoms. Robert Meyer deserves to be remembered as a hero of American conscience alongside Rosa Parks and so many others."
---Charles L. Glenn, July 2000 Public Lecture at Boston University

Questions to Ponder:
Why did the state of Nebraska criminalize the teaching of a Bible story in German to one boy on one afternoon? Would it be different if it were a modern state regulating the teaching of the Koran in Arabic at a madras-style school?

Could this have as easily been a case involving free exercise of religion vs. establishment of religion?

Were the rights of children in this case as important to the justices as the rights of parents? Do children actually have a right to an education?

Meyer involved a private school. Does the state have greater power to regulate the curriculum of public schools than private schools? Would it have the power to ban foreign languages from private schools, today?

If there are so many foreign language students in a school that many cannot understand their classes, does the state have the obligation to provide core curriculum instruction in that language, for example Chinese or Spanish? If there are dozens of non-related foreign language students in a school, is the school system obliged to provide core-curriculum instructors in all those languages?

Meyer involved the teaching of a modern language, but that is not the only item in the school curriculum, which may be controversial. Meyer's contemporary, John Scopes, got into trouble in 1925 for teaching the theory of evolution. How can a school board protect the Fourteenth Amendment rights of one group of parents and students without trampling the rights of others?

Selected Bibliography:
Crawford, James. Bilingual education: History, politics, theory, and practice. (Trenton, N.J.: Crane Publishing, 1989.)

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.)

van Geel, Tyll. The Courts and American Education Law. (Buffalo: Prometheus Books, 1987.)

Gateway Links:
http://caselaw.lp.findlaw.com/cgi-bin/getcase.p...
http://www.oyez.org/oyez/resource/case/242
http://www.watzmann.net/scg/german-by-one-vote....

Battle:
In November 1922 the voters of Oregon passed a referendum adopting a Compulsory Education Act. Scheduled to take effect in 1926, the law required parents to send all children between eight and sixteen years of age to public school, or be guilty of a misdemeanor. The Society of Sisters of the Holy Name of Jesus, a Roman Catholic order, which maintained parochial schools, sought and obtained court injunctions along with Hill Military Academy, also a private school, to restrain enforcement of the Compulsory Education Act. Walter M. Pierce, the governor of Oregon, appealed the injunctions to the Supreme Court.

Opinion:
In Pierce v. Society of Sisters (1925), the Supreme Court acknowledged that the state had wide latitude to regulate education. Nonetheless, the Court unanimously found Oregon's law unconstitutional stating, "The inevitable practical result of enforcing the act under consideration would be destruction of appellees' primary schools, and perhaps all other private primary schools for normal children within the state of Oregon." All the justices believed that Oregon's law was arbitrary, unreasonable and an unlawful interference with the private schools' Fourteenth Amendment property rights guarantee. But, their opinion went further, reaffirming the Fourteenth Amendment fundamental liberty of parents to rear their children without interference from the government.

Context:
The anti-German sentiment of World War I had broadened because of the Bolshevik Revolution into a widespread concern about communists, flaring into the Red Scare of 1919-1920. In addition to fears about other political extremists, including anarchists, there were fears about Southern and Eastern European immigrants, which culminated in the Sacco-Vanzetti trial in 1921. Pre-existing anti-Catholicism and Nativist sentiment fused with these political concerns, resulting in legislative action. On the national level, Congress passed quotas in 1921 and 1924, which drastically restricted immigration to the United States. Attorney General A. Mitchell Palmer established a General Intelligence Division in the Justice Department to seek out radicals for detainment and deportation.

Oregon responded to the perceived threat posed by the foreign-born by proposing the Compulsory Education Act. The Ku Klux Klan and the Scottish Rite Masons had promoted the Oregon initiative. These organizations persuaded voters that it was necessary to Americanize students in public schools to reduce the threat posed by immigrants and Catholics. Public school teachers also supported the initiative because they were concerned with losing citizens' support for public schools if they did not. Oregon was not the only state to consider compulsory public schooling; Ohio voters twice rejected a similar amendment to the state constitution in 1920 and 1924.

Impact/Consequences: In addition to overturning the Oregon law and affirming the right of parents to send their children to private schools, Pierce has been cited in over 100 subsequent Supreme Court decisions. Because it asserts that citizens have fundamental rights not expressly listed in the Constitution, it has been used in arguing civil rights cases. Some have involved rights of children or students, such as in re Gault and Tinker v. Des Moines, while others have involved privacy, such as Roe v. Wade, yet others touch on religious exercise or establishment, such as Wisconsin v. Yoder. Because of this decision, it is commonly, but not universally, accepted today that private and parochial schools, along with home schooling, offer rewarding choices to parents, thus affording support for a more diverse society. Opponents continue to argue, however, that no federal funds should be used in supporting such schools, especially those offering religious instruction.

Quotes:
"Under the doctrine of Meyer v. Nebraska, we think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control. As often heretofore pointed out, rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the state. The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations."
--Justice James McReynolds, 1925 Pierce v. Society of Sisters opinion

"No question is raised concerning the power of the state reasonably to regulate all schools, to inspect, supervise and examine them, their teachers and pupils; to require that all children of proper age attend some school, that teachers shall be of good moral character and patriotic disposition, that certain studies plainly essential to good citizenship must be taught, and that nothing be taught which is manifestly inimical to the public welfare."
--Justice James McReynolds, 1925 Pierce v. Society of Sisters opinion

"Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit. Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace. Parents have a prior right to choose the kind of education that shall be given to their children."
--The United Nations, 1948 Universal Declaration on Human Rights: Article 26

"The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition. If not the first, perhaps the most significant statements of the Court in this area are found in Pierce v. Society of Sisters..."
--Chief Justice Warren Burger, 1972 Wisconsin v. Yoder opinion

Questions to Ponder:
If parents and children opt out of public school education, does it raise the danger of religious and racial intolerance? If parents and children opt of out public school education, does it undermine citizenship and patriotism? If parents opt their children out of public education, does it make it easier for children to be abused? From the point of view of whom--the parents or the state?

If the state makes all decisions regarding the education of children, is there an equal danger of totalitarianism?

What are the children's rights in the matter of education, as opposed to their parents or the state? At what age, if any, should children's opinions be taken into account about their own schooling?

Justice James McReynolds wrote the opinions both in Meyer and Pierce, setting the stage for a broad expansion of individual rights during the twentieth century, yet he was a conservative justice also known to be an implacable foe of Franklin Roosevelt's New Deal. Justice Oliver Wendell Holmes, Jr, is often viewed as liberal, yet he dissented in Meyer. How do you account for this? Are the terms "conservative" and "liberal" irrelevant when applied to justices of the Supreme Court?

What relevance does Pierce have on modern issues of school choice, vouchers, charter schools, and home-schools? What are the areas where the state can legitimately set limits for non-public schools: Healthy and safety? Educational proficiency standards? Specific curriculum items? Citizenship?

Selected Bibliography:
Dwyer, J. G. Religious schools v. children's rights. (Ithaca: Cornell University Press, 1998.)

Glenn, C. L. The myth of the common school. (Amherst: University of Massachusetts Press, 1988.)

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.)

van Geel, Tyll. The Courts and American Education Law. (Buffalo: Prometheus Books, 1987.)

Woodhouse, Barbara B., "Child Abuse, The Constitution, and the Legacy of Pierce v. Society of Sisters," University of Detroit Mercy Law Review 78 (2001): 479.

Gateway Links:
http://www.bu.edu/library/education/glenn1.html
http://caselaw.lp.findlaw.com/cgi-bin/getcase.p...
http://www.oyez.org/oyez/resource/case/305
http://en.wikipedia.org/wiki/Pierce_v._Society_...

Battle:
In December 1965, the family of Methodist minister Leonard Tinker and others were considering ways of protesting the Vietnam War. They decided to fast on December 16 and January 1, and also to wear 2-inch wide black armbands through New Year's Day, including at their public schools in Des Moines, Iowa. The principals of the school system quickly adopted and announced a policy on December 14th that they would ask secondary students to remove armbands and those who did not would be suspended until they returned to school without them. Although their father was uncertain, all four Tinker children (second-grader, Paul (8); fifth-grader Hope (11); junior high school eighth-grader, Mary Beth (13); and 15-year-old high school junior, John), along with Christopher Eckhardt, wore their armbands to school. At the high school some students commented on the armbands and one football player warned these students to leave the protesters alone. Teachers of the elementary school children took the opportunity to talk about freedom of expression. However, secondary school authorities asked the older children to remove their armbands, suspending Mary Beth, John, and Christopher. The three students missed roughly five days before Christmas break and one day after. On Christmas Eve, the Tinker family received a phone call threatening to blow up their house. Concluding their protest on January 1, 1966, the students returned to school the following day, without armbands. Parents of the suspended students filed suit against the school system in U.S. District Court, asking for damages of $1. When the District Court ruled against them, they filed an appeal with the Eighth Circuit. The Circuit Court deadlocked, which left the lower court's decision in place, so the case went to the Supreme Court. The high Court would have to decide this issue: had the students First Amendment free speech protection--in this case the symbolic speech of the black armbands--been violated?

Opinion:
Justice Abe Fortas framed three issues in the case as he wrote the majority opinion. Was wearing an armband an act covered by the First Amendment's protection of free speech? Do First Amendment rights to symbolic speech extend to students in schools? Does the danger of disruption to the school clearly warrant denial of students' First Amendment Rights? The majority found that wearing an armband was closely akin to protected "pure speech." They also asserted that First Amendment rights are applicable to students. Finally, they concluded that Des Moines Independent Community School District had violated the free speech rights of these children. While schools had the right to limit expression that would substantially interfere with school safety and order, they had failed to demonstrate that the armbands were disruptive. Dissenting justices did not believe that the First Amendment was broadly applicable to students and questioned whether the Court was ignoring the Tenth Amendment and interfering in powers belonging to the states, in particular education.

Context:
The Vietnam War was one of the most divisive in U.S. history; those supporting the war and those opposing it did so with deep conviction. By 1965 there were 170,000 U.S. soldiers in Vietnam and television news was carrying nightly images of death and destruction. Senator Robert Kennedy had called for a Christmas truce in 1965. War protesters used the symbol of black armbands because they traditionally have been a symbol of mourning; President Franklin Roosevelt wore one for a period of over a year when his mother, Sara, died.

The anti-war movement used the First Amendment's protections of free expression to voice its opposition through song, word, and petition; in meetings, sit-ins, parades, candlelight vigils, and demonstrations; and symbolic acts of disapproval, ranging from pouring animal blood onto the steps of the Pentagon to flag-burning. On Moratorium Day (October 15, 1969) an estimated two million peace activists participated in what is believed to be the largest demonstration in U.S. history. In some instances, there were clashes between anti-war protesters and those who supported the war, or authorities. A year after the Tinker decision, on May 4, 1970, a confrontation between protesting students and the Ohio National Guard left four students dead and sixteen wounded at Kent State University.

Impact/Consequences:
Tinker v. Des Moines was a landmark case in symbolic speech and students' rights. School systems across the country attempted to revise school codes to conform with Tinker. The decision also opened the floodgates to a host of other student cases, from the length of hair, dress codes, and body piercing to gang insignia, Confederate flags, and access to school dances by gay couples. Some have been refused as not substantially involving communication while others have been deemed protected.

Subsequent decisions have established restraints on students' free speech, however, including lewd speech (Bethel School District v. Fraser) and content of school newspapers (Hazelwood School District v. Kuhlmeier). In 1995, the Sixth Circuit Court of Appeals upheld a district court decision prohibiting a student from writing a research paper on the life of Jesus (Settle v. Dickson County School Board). The exact nature of student rights continues to evolve.

Quotes:
"What was it like for a 13 year old, 15 year old, and 16 year old to go to trial to contest your suspension? First, to set one part of the record straight, Mary Beth was 13, John was 15, and although 99% of the literature for the past 30+ years wants to age me to being 16, I, like John, was only 15 years old. But, who's counting? At one point when I was on the witness stand, I testified how the Vice-Principal of Roosevelt, on 12-16-65, asked me to remove my black arm band, and I refused on constitutional grounds. Then he asked me, "Do you want a busted nose?" While repeating this, I watched from the witness stand, as the Vice-Principal walked out of the courtroom. I still don't know whether it was out of shame, or just maybe because he needed to go to the bathroom."
--Christopher Eckhardt, 1998 ABA Online Conversations Q & A

"CHIEF JUSTICE WARREN: Mr. Herrick, before you get off that subject, is that any different from what was going on in practically every community in this country during the last two months, during the campaign for the presidency? Weren't those things thoroughly debated and argumentatively and vociferously in almost every community in the country?

MR. HERRICK: Oh, I think that's true, your honor, but I think the place for that ...

CHIEF JUSTICE WARREN: Do you think then that what you have read is an efficient backdrop for stopping First Amendment rights in all of these communities because of that?

MR. HERRICK: I think, your honor, that the correct answer to that is free discussion in the classroom is always permitted, always has been, if they want to come in and discuss these matters. But the question of imposing on a captive audience moving in with an armband when it's known through the press, through the community, through the things that have happened here that the community is inflamed might disrupt the orderly conduct of schools."
--Exchange between Allan Herrick, attorney for Des Moines Public Schools and Chief Justice Earl Warren, November 12, 1968 Tinker v. Des Moines transcript of oral arguments

"...a particular symbol--black armbands worn to exhibit opposition to this Nation's involvement in Vietnam--was singled out for prohibition. Clearly, the prohibition of expression of one particular opinion, at least without evidence that it is necessary to avoid material and substantial interference with schoolwork or discipline, is not constitutionally permissible. In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students in school as well as out of school are "persons" under our Constitution. They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State."
--Justice Abe Fortas, 1969 Tinker v. Des Moines opinion

"Turned loose with lawsuits for damages and injunctions against their teachers as they are here, it is nothing but wishful thinking to imagine that young, immature students will not soon believe it is their right to control the schools rather than the right of the States that collect the taxes to hire the teachers for the benefit of the pupils. This case, therefore, wholly without constitutional reasons in my judgment, subjects all the public schools in the country to the whims and caprices of their loudest-mouthed, but maybe not their brightest, students. I, for one, am not fully persuaded that school pupils are wise enough, even with this Court's expert help from Washington, to run the 23,390 public school systems in our 50 States. I wish, therefore, wholly to disclaim any purpose on my part to hold that the Federal Constitution compels the teachers, parents, and elected school officials to surrender control of the American public school system to public school students. I dissent."
--Justice Hugo Black, 1969 Tinker v. Des Moines dissent

"High School Student's First and Fourteenth Amendment Rights Were Not Violated by School Board's Ban of T-Shirts Depicting a 'Ghoulish and Creepy' Rock Star Marilyn Manson, Federal Appellate Court Affirms,"
--EntertainmentLaw Reporter 22 (December 2000): 18.

Questions to Ponder:
The First Amendment guarantees "freedom of speech" but does not define exactly what speech means. Given that it was written in 1789 in the wake of various forms of protest by the Sons of Liberty and other revolutionaries, of what types of speech would its author, James Madison, and his contemporaries in Congress have been thinking? The Supreme Court in the past hundred years has looked at distribution of political pamphlets, picketing, black armbands, flag salute, burning of draft cards, and flag-burning. Are these matters that Madison and the First Congress could have imagined? "Strict constructionists" would say that the amendment should not be extended beyond the "original intent" of the founders. What do you think?

The Tinker family was devout and believed in actively expressing their support for social justice; one of Mary Beth's earliest recollections is her family's involvement in the civil rights movement. Because the younger children were not suspended, the Supreme Court did not address the age where they believe the children are expressing their own opinions rather than parroting the opinions of their family. What do you think the age is? Do parents have the right to project their political opinions into the schools via their children?

Do you think the Tinker children achieved their objective of drawing attention to the Vietnam War? The Court decision mentions impact on other childrens' rights, but how can school systems anticipate or measure what is offensive yet protected and what is not? How do you measure disruption?

The Supreme Court emphasized that unpopular opinion is protected by the First Amendment. But, what if the speech involves racist comments? What if the Tinker children had been wearing Nazi swastika armbands? What if the black armbands were a gang insignia?

In the oral arguments and majority opinion, the justices were skeptical that seven students passively wearing black armbands could disrupt a school system of 18,000. Has the Internet and modern communications changed the equation since 1969?

Selected Bibliography:
Flygare, Thomas J., "Is Tinker Dead?" Phi Delta Kappan 68 (October 1986): 165--66.

Irons, Peter. The Courage of Their Convictions: Sixteen Americans Who Fought Their Way to the Supreme Court. (New York: The Free Press, 1988.)

Johnson, John W. The Struggle for Student Rights: Tinker v. Des Moines and the 1960s (Lawrence, Kansas: University of Kansas Press, 1997.)

Lane, Robert Wheeler. Beyond the Schoolhouse Gate: Free Speech and the Inculcation of Values. (Philadelphia: Temple University Press, 1995.)

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.)

Podgor, Ellen S., "Symbolic Speech," Indiana Law Review 9 (1976): 1009--32.

Porto, Brian L., "The Tinker Decision and Native Americans: The Case for Expanding a Precedent," Journal of Law and Education 11 (1982): 65--77.

Rappaport, Doreen. Tinker vs. Des Moines: Student Rights on Trial. (New York: Harper Collins, 1993.)

van Geel, Tyll. The Courts and American Education Law. (Buffalo: Prometheus Books, 1987.)

Gateway Links:
http://www.abanet.org/publiced/lawday/tinker/ho...
http://caselaw.lp.findlaw.com/scripts/getcase.p...
http://www.oyez.org/oyez/resource/case/391
http://www.landmarkcases.org/tinker/home.html
http://www.law.umkc.edu/faculty/projects/ftrial...