Teacher Resources: Lesson Plan

Equal Protection for Women, Reed v. Reed

Overview

Students often think that the adoption of the 19th Amendment guaranteed women not only voting rights but also full and equal legal rights, but this is not the case. In this lesson, students will learn that not until 1971, in the case of Reed v. Reed, was the 14th Amendment applied to women to afford them equal protection under law. Students will learn about the background of the case, read part of the unanimous opinion and may listen to oral argument audio files. As a culminating activity, students will compare and contrast constitutional amendments with Supreme Court decisions and evaluate which they believe is a better means for guaranteeing rights to U.S. citizens. This lesson is designed for high school students in either U.S. History or Government/Civics, grades 9-12.

National Curriculum Standards met by this lesson

For a list of standards that this unit addresses, click here.

Ties to your Curriculum

This lesson ties into United States History when studying:

This lesson ties into United States Government/Civics when studying:

Time Required

The lesson will take one class period if written work is done outside of class.

Materials

The Lesson

Anticipatory Set

  1. Associate Supreme Court Justice Ruth Bader Ginsburg provided the setting for this lesson in remarks to Hofstra University School of Law in July 1997. Read aloud what she said to the class. (Links to the full set of remarks are included in the Related Works segment of this lesson plan.) She said:
    2. The case involved a teenage boy from the State of Idaho, Richard Lynn Reed, who died under tragic circumstances. His parents were long separated and the court gave custody to his mother, Sally Reed, while the boy was "of tender years." Then, when Richard reached his teens, the court placed him in the custody of his father, Cecil Reed, to prepare Richard for his manhood years. The boy fell in with a bad crowd and spent some time in a corrections facility. When he was released, again to his father's custody, he was deeply depressed, and one day committed suicide, using his father's gun. Sally Reed, the mother, sought to take charge of her son's few belongings, and so applied to the court to be administrator of Richard's death estate. The father, some days later, applied for the same appointment.
  2. Share with students that Sally and Cecil Reed were not wealthy people; he was a mechanic for the state highway department while she had worked as a secretary and bookkeeper. They adopted Richard, but were divorced in 1958 when he was about 7 years old. At the time of his death, in 1967, 16-year-old Richard Lynn Reed had very little savings or property, less than $1,000. Poll the class to determine which parent they thought the court would appoint to be administrator of Richard's estate.
  3. Explain to students that Idaho's 1864 probate law read, "[o]f several persons claiming and equally entitled [under 15-312] to administer, males must be preferred to females." Ask students who would be appointed administrator if the probate court obeyed the state law. Point out that Idaho was not alone and that Nevada, South Dakota, Arizona, Wyoming, and the District of Columbia had similar laws.
  4. Read to students Ruth Bader Ginsburg's continuation of her description of the case:
    5. The Idaho court turned down Sally Reed's application, although it was first in time, and appointed the father, under a state statute that read: as between persons equally entitled to administer a decedent's estate, males must be preferred to females. Sally Reed was not a sophisticated woman. She earned her living by caring for elderly people, taking them into her home. She probably did not think of herself as a feminist, but she had the strong sense that her state's law was unjust. And I sensed that she would prevail.
  5. Share with students that sixteen lawyers rejected Sally Reed's case before Allen Derr agreed to take it on. He also agreed to accept the help of the American Civil Liberties Union (ACLU), where Ruth Bader Ginsburg was serving as head of the Women's Rights Project. Derr conducted the oral arguments before the court but the majority of the case brief was written by Ruth Bader Ginsburg, with help from Melvin Wulf, director of the ACLU. Papers of the late associate Supreme Court Justice Harry A. Blackmun, released in 2004, reveal that the case was received with skepticism. In a 4-page memo written to himself before the oral argument in the October 1971 term of the court, he wrote, "This case is a test case and much ado about nothing," and characterized Ginsburg's brief as very lengthy and "filled with emotion and historical context about the inferior status of women." No state law had ever been struck down for unequal treatment of women since the Constitution had been written in 1787.
  6. Explain to students that they will be examining the first page of the 6-page 1971 opinion written by Chief Justice Warren Burger (below) of the United States Supreme Court to find out whether Sally or Cecil Reed prevailed.

Procedures

  1. Print out the first page of the decision and the Supreme Court Opinion Analysis Worksheet (below) and direct students work in pairs to answer the questions.
  2. Discuss the worksheet in class.
  3. To have the students listen to part of the oral argument presented by Allen Derr and Charles Stout, they may be accessed at Oyez, the Supreme Court Multimedia Website at http://www.oyez.org/oyez/resource/case/322/abstract. To read the entire decision, it may also be accessed through that page or also at the website of FindLaw (which will show other cases in which Reed v. Reed, is cited by the Supreme Court or federal Circuit Courts.) http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=404&page=71
  4. Although Reed v. Reed, broke new ground, the court rejected Idaho's law on the basis of a rational basis test, not because discrimination against women was viewed legally as the same as discrimination against racial groups. The Supreme Court has, over a number of decisions, including Frontiero v. Richardson (1973), Craig v. Boren (1976), and United States v. Virginia (1996) moved more in that direction. At present, the court applies applies a "middle tier" test on sex discrimination, but has left the door open to applying a "strict scrutiny" test as it does in cases of racial discrimination. Some argue that what is needed to provide equal protection for women under the law is an equal rights amendment. The following proposed amendment was drafted by suffragist leader Alice Paul in 1921, passed by Congress and sent to the states in 1972, and had been ratified by 35 of the necessary 38 states when time ran out for it in 1982:

    5. Section 1. Equality of Rights under the law shall not be denied or abridged by the United States or any state on account of sex.

    Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

    Section 3. This amendment shall take effect two years after the date of ratification.

  5. Explain to students that, as a culminating activity, they will write a paper in which they will compare and contrast constitutional amendments with Supreme Court decisions and evaluated which they believe is the better means for guaranteeing rights to U.S. citizens. Each paper should include
    • A comparison and contrast between, first, how an amendment is passed, and second, how a Supreme Court decision is reached
    • A comparison and contrast between how many amendments have been changed or repealed, as opposed to changes in interpretation of equal rights by the Supreme Court
    • An evaluation of which, constitutional amendment or Supreme Court decision, is a better means for guaranteeing rights to U.S. citizens

First page of the 6-page 1971 opinion written by Chief Justice Warren Burger

U.S. Supreme Court
REED v. REED, 404 U.S. 71 (1971)
404 U.S. 71
REED v. REED, ADMINISTRATOR
APPEAL FROM THE SUPREME COURT OF IDAHO
No. 70-4.
Argued October 19, 1971
Decided November 22, 1971

A mandatory provision of the Idaho probate code that gives preference to men over women when persons of the same entitlement class apply for appointment as administrator of a decedent's estate is based solely on a discrimination prohibited by and therefore violative of the Equal Protection Clause of the Fourteenth Amendment.

93 Idaho 511, 465 P.2d 635, reversed and remanded.

BURGER, C. J., delivered the opinion for a unanimous Court.

Allen R. Derr argued the cause for appellant. With him on the briefs were Melvin L. Wulf, Ruth Bader Ginsburg, Pauli Murray, and Dorothy Kenyon.

Charles S. Stout argued the cause for appellee. With him on the brief was Myron E. Anderson.

Briefs of amici curiae urging reversal were filed by J. Lee Rankin and Norman Redlich for the City of New York; by Martha W. Griffiths, Phineas Indritz, Leo Kanowitz, Marguerite Rawalt, Sylvia Roberts, and Faith Seidenberg for American Veterans Committee, Inc., et al.; and by Birch Bayh for the National Federation of Business and Professional Women's Clubs, Inc.

MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.

Richard Lynn Reed, a minor, died intestate in Ada County, Idaho, on March 29, 1967. His adoptive parents, who had separated sometime prior to his death, are the parties to this appeal. Approximately seven months after Richard's death, his mother, appellant Sally Reed, filed a petition in the Probate Court of Ada County, [404 U.S. 71, 72] seeking appointment as administratrix of her son's estate. Prior to the date set for a hearing on the mother's petition, appellee Cecil Reed, the father of the decedent, filed a competing petition seeking to have himself appointed administrator of the son's estate. The probate court held a joint hearing on the two petitions and thereafter ordered that letters of administration be issued to appellee Cecil Reed upon his taking the oath and filing the bond required by law. The court treated 15-312 and 15-314 of the Idaho Code as the controlling statutes and read those sections as compelling a preference for Cecil Reed because he was a male.

Supreme Court Opinion Analysis Worksheet

  1. What is the name of this case?
  2. From which court was the case appealed?
  3. What date was the case argued?
  4. What date was the case decided?
  5. What did the mandatory provision of the probate code give when persons of the same entitlement class apply for appointment as administrator of a decedent's estate (the estate of someone who has died)?
  6. Was this a form of discrimination permitted or prohibited?
  7. What Amendment and clause did the code violate?
  8. The decision of what state was reversed in this case?
  9. "C. J." stands for Chief Justice. Who was the Chief Justice at this time?
  10. Who delivered the opinion of the Supreme Court?
  11. Did all nine justices of the Supreme Court agree on this opinion?
  12. Who presented the oral arguments for the appellant?
  13. Did Ruth Bader Ginsburg write a brief for the appellant or the appellee?
  14. Who argued the cause for the appellee?
  15. Amici curiae briefs are legal documents filed by groups not directly involved in the case who want to add other arguments or information to that presented by the lawyers involved in the case. What three groups filed amici curiae briefs for reversal (on the side of the appellant) in this case?
  16. Who is the appellant in the case?
  17. Who is the appellee in the case?
  18. "Died intestate" means that the person died without a will. Whose death set the events in motion which led to this case, and when did he die?
  19. Who are the parties to this appeal?
  20. If a person who administers an estate is female, she is called an administratrix; if male, he is called an administrator. Who first filed to the probate court to receive the letters of administration for the estate of the decedent (the person who died)?
  21. Who held the joint hearing?
  22. What did the court treat as the controlling statutes in this case?
  23. Did the court see the controlling statutes as voluntary or compelling (mandatory)?
  24. Who was preferred by the statutes?
  25. Why was he preferred?

Key to the Supreme Court Opinion Analysis Worksheet

  1. What is the name of this case? Reed v. Reed
  2. From which court was the case appealed? Supreme Court of Idaho
  3. What date was the case argued? October 19, 1971
  4. What date was the case decided? November 22, 1971
  5. What did the mandatory provision of the probate code give when persons of the same entitlement class apply for appointment as administrator of a decedent's estate (the estate of someone who has died)? It gave preference to men over women
  6. Was this a form of discrimination permitted or prohibited? prohibited
  7. What Amendment and clause did the code violate? Equal Protection Clause of the 14th Amendment
  8. The decision of what state was reversed in this case? Idaho
  9. "C. J." stands for Chief Justice. Who was the Chief Justice at this time? Burger
  10. Who delivered the opinion of the Supreme Court? Chief Justice Burger
  11. Did all nine justices of the Supreme Court agree on this opinion? Yes, it was unanimous.
  12. Who presented the oral arguments for the appellant? Allen R. Derr
  13. Did Ruth Bader Ginsburg write a brief for the appellant or the appellee? Appellant
  14. Who argued the cause for the appellee? Charles S. Stout
  15. Amici curiae briefs are legal documents filed by groups not directly involved in the case who want to add other arguments or information to that presented by the lawyers involved in the case. What three groups filed amici curiae briefs for reversal (on the side of the appellant) in this case? City of New York, American Veterans Committee, National Federation of Business and Professional Women's Clubs
  16. Who is the appellant in the case? Sally Reed
  17. Who is the appellee in the case? Cecil Reed
  18. "Died intestate" means that the person died without a will. Whose death set the events in motion which led to this case, Richard Lynn Reed and when did he die? March 29, 1967
  19. Who are the parties to this appeal? Richard's adoptive parents
  20. If a person who administers an estate is female, she is called an administratrix; if male, he is called an administrator. Who first filed to the probate court to receive the letters of administration for the estate of the decedent (the person who died)? His mother, Sally Reed
  21. Who held the joint hearing? The probate court
  22. What did the court treat as the controlling statutes in this case? 15-312 and 15-314 of the Idaho Code
  23. Did the court see the controlling statutes as voluntary or compelling (mandatory)? compelling
  24. Who was preferred by the statutes? Cecil Reed
  25. Why was he preferred? Because he was a male

Assessment

The students' papers may be evaluated on a twenty-point scale (which may be multiplied by five to convert to 100-point scale or for conversion to letter grades) using the following rubric:

 

Excellent

Good

Fair

Not Satisfactory

No Work

Comparison and Contrast of Amendment and Court Decision Process

5 points

(5) Written assignment demonstrates for both amendment and court process:

  • Thorough research
  • Insightful comparison and contrast

(4) Written assignment demonstrates for both amendment and court process:

  • Complete research
  • Good comparison and contrast

(3-2) Written assignment demonstrates for both amendment and court process:

  • Some research
  • Good comparison and contrast

(1) Written assignment demonstrates for both amendment and court process:

  • Little or no research
  • Incomplete comparison and contrast

0

Comparison and Contrast of Amendment and Court Decision Changes

5 points

(5) Written assignment demonstrates for both amendment and court decision:

  • Thorough research
  • Insightful comparison and contrast

(4) Written assignment demonstrates for both amendment and court decision:

  • Complete research
  • Good comparison and contrast

(3-2) Written assignment demonstrates for both amendment and court decision:

  • Some research
  • Fair comparison and contrast

(1) Written assignment demonstrates for both amendment and court decision:

  • Little or no research
  • Incomplete comparison and contrast

0

Presentation of Opinion

5 points

(5) Written assignment demonstrates excellent

  • analysis of information
  • command of facts
  • formulation of opinion

(4) Written assignment demonstrates good

  • analysis of information
  • command of facts
  • formulation of opinion

(3-2) Written assignment shows fair or incomplete

  • analysis of information
  • command of facts
  • formulation of opinion

(1) Written assignment shows little or no

  • analysis of information
  • command of facts
  • formulation of opinion

0

Technical Writing Skills

5 points

(5) Written assignment shows excellent

  • compositional structure
  • sentence structure and variety
  • vocabulary use
  • grammar, spelling, punctuation

(4) Written assignment shows good

  • compositional structure
  • sentence structure and variety
  • vocabulary use
  • grammar, spelling, punctuation

(3-2) Written assignment shows adequate

  • compositional structure
  • sentence structure and variety
  • vocabulary use
  • grammar, spelling, punctuation

(1) Written assignment shows inadequate

  • compositional structure
  • sentence structure and variety
  • vocabulary use
  • grammar, spelling, punctuation

0

Related Works

American Academy of Arts and Sciences, Academy Bulletin, "Gender and Inequality: Old Questions, New Answers" includes a good deal of background information about the Reeds and the case of Reed v. Reed, at http://www.amacad.org/blvlivn4/blvlivn4_14.aspx

American Civil Liberties Union, "Timeline of Women's Rights Cases" http://www.aclu.org/WomensRights/WomensRights.cfm?ID=9913&c=33

"Constitutional Adjudication in the United States as a Means of Advancing the Equal Stature of Men and Women Under the Law," remarks by Associate Supreme Court Justice Ruth Bader Ginsburg at Hofstra University School of Law, July 15, 1997
http://www.hofstra.edu/Academics/Law/law_lawrev_ginsburg.cfm

"The Evolution of a Justice," article by Linda Greenhouse for the New York Times, April 10, 2005 about the papers of Associate Justice Harry A. Blackmun, includes a description of how he grappled with Reed v. Reed, and may be found at:
http://www.wfu.edu/~chesner/bc-conlawii/Linked%20Files/The%20New%20York%20Times%20%20Magazine%20%20The%20Evolution%20of%20a%20Justice.htm

and also http://www.truthout.org/cgi-bin/artman/exec/view.cgi/35/10280

Missouri-Kansas City Law School, Exploring Constitutional Conflicts, The Proposed Equal Rights Amendment includes the failed amendment, and judicial rulings which have advanced equal rights for women at http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/era.htm

Cushman, Clare. Supreme Court Decisions and Women's Rights. (Washington, DC: CQ Press and the Supreme Court Historical Society, 2000.) This book includes a forward by Ruth Bader Ginsburg and is the basis for material on the Supreme Court Historical Society's website segment on women's rights.

Frost-Knappman, Elizabeth and Cullen-DuPont, Kathryn, eds. Women's Rights on Trial. (Farmington Hills, Michigan: Thomson Gale, 1997.) This encyclopedic volume traces women's rights through 101 trials beginning with Anne Hutchinson in 1637 to the Virginia Military Institute case, United States v. Virginia (1996).

Interdisciplinary Links

Computer Applications--Students may:

Journalism/Language Arts: Just as the World War II veterans and civil rights activists are aging, and as they die their stories are lost, so the women who remember receiving the right to vote, or those who remember women's sports before Title IX, or who were involved in the debate over the failed Equal Rights Amendment are aging and when they die their stories will be lost. The school may wish to make an effort to conduct interviews or collect oral histories from both men and women about the changing role of women in America during the 20th century. A good website with tips by Bret Enyon about how to do an oral history is at the PBS Point of View: Vietnam Stories Since the War website at http://www.pbs.org/pov/stories/vietnam/curriculum.html. The guidelines are readily adaptable to women's history.