Encyclopedia
Actual Malice Test: The actual malice test is applied to defamatory speech directed at public officials or public figures. It requires public officials to prove that an offending story was published with "knowing falsehood and reckless disregard for the truth." Proof of falsehood or negligence are not enough to establish actual malice on the part of an author. Actual malice is also different from common-law malice, which involves hate or ill will. Justice William J. Brennan defined the test in New York Times v. Sullivan (1964): "A State cannot under the First and Fourteenth Amendments award damages to a public official for defamatory falsehood relating to his official conduct unless he proves 'actual malice'--that the statement was made with knowledge of its falsity or with reckless disregard of whether it was true or false." As a result of this narrow definition, public officials are not usually successful in proving libel.
Adkins v. Children's Hospital: Court held that wage regulation was unconstitutional, in a lengthy opinion that outlines the development of work-related legislation and the role of women in the workforce. The decision limits the Police Power of the state to regulate maximum work hours but not wages and reflects upon the "revolutionary changes" brought about by the passing of the 19th Amendment. Two dissenting opinions are included.
Agricultural Bank of Mississippi v. Rice: Decided by a vote 6 to 0.
A wife cannot be forced to testify, or give evidence, against her husband. To allow this to happen would "break down or impair the great principles which protect the sanctities of husband and wife," destroying thereby "the best solace of human existence." The one exception is when the "husband commits an offense against the person of his wife."
Akron v. Akron Center for Reproductive Health: Akron Center for Reproductive Health challenged a series of Akron, Ohio ordinances governing abortion in the second trimester. In a decision by Justice Lewis Powell, restrictions concerning venue, information shared, waiting period, and physician culpability were found unconstitutional. The majority cited undue cost, departure from accepted medical, updated treatments, and the right to an abortion as the primary basis for their decision.
[Gateway Links:]
http://www.oyez.org/oyez/resource/case/10/
http://straylight.law.cornell.edu/supct/html/historics/USSC_CR_0462_0416_ZS.html
Alexander v. Louisiana: An African-American sought to have his rape conviction voided. He alleged the grand jury selection procedure was racially bias and this led to an all white panel. He also challenged the exemption of women from it. The Court, in an opinion by delivered by Byron White, granted the request, citing the attachment of racial indicators to the grand jury selection form as compromising the neutrality necessary for picking jurors. They did not accept his challenge to the exemption of women since they granted him a new trial based on other criteria.
American Civil Liberties Union: Founded in 1920 as a national, nonprofit, non-partisan legal organization, the ACLU was dedicated to defending the constitutional rights of Americans. Its first president was Roger Baldwin, its founder, who served as president for 30 years. Its early members included such progressives as Norman Thomas, Jane Addams, Lillian Wald, Felix Frankfurter, Oswald Garrison Villard, Paul Kellogg, Clarence Darrow, John Dewey, Charles Beard, Helen Keller, and Upton Sinclair. It gained much notoriety representing those opposed to World War I, labor agitators, socialists and communists, anarchists, political radicals, and members of nonconformist religious groups. The organization was especially active defending the entire range of civil rights guaranteed in state and federal constitutions, including: First Amendment rights--such as free speech, assemblage, and press; equal protection of the law regardless of race, sex, religion, national origin, sexual orientation, age, sexual orientation, or physical handicap; the due process of law; free speech; and the right of privacy. They were directly involved in almost every major civil liberty case in American courts, including the Scopes Monkey trial (1925) and Brown v. Board of Education (1954).
Ankeney v. Hannon: Women/Gender--Marriage & Family (Feme Covert/SoleStatus, Property & Business)
Arkansas v. U. S.: Court affirmed two men guilty of tranporting a sevnteen-year-old girl across state lines for purpose of 'debauchery'.
Articles of Confederation: The First Constitution of the United States: Was approved by the Second Continental Congress on November 15, 1777, and ratified in 1781. The issues of representation, disposition of western lands, and taxation were hotly debated before Congress adopted the Articles. Congress eventually decided that each state would have one vote and that the value of surveyed lands would serve as the basis of taxation. It took four years for the Articles to be ratified because states like Virginia objected to giving up claims to vast expanses of frontier lands. Virginia finally gave up its claim to the Old Northwest in 1781, and Maryland, the last state to ratify the Articles, accepted them on March 1, 1781. Unfortunately, the Articles were flawed in several ways. Congress, under the Articles, could not regulate commerce and trade, demand that states enforce its judgments, tax its citizens, or issue paper currency. Because of these defects, Congress convened an assemblage of national leaders to reform the Articles by adding amendments to them. This 1787 meeting in Philadelphia drafted the Constitution of the United States, which created a more powerful central government upon its ratification in 1788.
Atwater v. City of Lago Vista: 2001: Decided by a vote of 5-4
Equal Justice and Unreasonable Search and Seizure.
[Battle:]
In the spring of 1997, Lago Vista police officer Bart Turek pulled over Gail Atwater's pickup truck. Neither Gail Atwater nor Anya, her five-year-old daughter, nor Mac, her three-year-old son, were wearing seat belts, as required by Texas law. The Texas statute allowed Turek to merely issue a citation, but also provided for arrest at the discretion of the police officer. When Atwater could not produce her driver's license and insurance, a friend who witnessed the traffic stop took Atwater's children away. Officer Turek handcuffed Atwater and took her to the police station where she was booked, photographed, and held in a cell for an hour before she was released on $310 bond. She pleaded no-contest to the seat belt violations and paid $50 fine. Subsequently, however, she filed suit in the United States District Court for the Western District of Texas, claiming that the arrest for a misdemeanor was a violation of her Fourth Amendment protection from unreasonable search and seizure. The district court ruled that Atwater's Fourth Amendment claim was without merit. The Fifth Circuit Court of Appeals affirmed the lower court, so Atwater appealed to the Supreme Court.
[Opinion:]
The Supreme Court ruled 5 to 4 that Gail Atwater's Fourth Amendment rights had not been violated. Justice David H. Souter wrote the opinion for the majority, joined by Chief Justice William H. Rehnquist and Justices Antonin Scalia, Clarence Thomas, and Anthony Kennedy. Justice Souter asserted that the standard of "probable cause" applied to all arrests, even for minor crimes such as a misdemeanor seat belt violation punishable only by fine. Justice Sandra Day O'Connor wrote a dissent, joined by Justices John Paul Stevens, Ruth Bader Ginsburg, and Stephen Breyer, which urged against giving police nearly unlimited ability to arrest citizens for minor crimes, since the power could be abused so easily.
[Context:]
Police Officer Bart Turek had stopped Gail Atwater once before, three months earlier; believing that her son, Mac was riding without his seat belt fastened, but was mistaken. Gail Atwater had one prior traffic citation, for failing to signal a lane change ten years earlier.
Gail Atwater lived with her husband, an emergency room doctor, and her children in the north Austin suburb of Lago Vista, population roughly 5,000. A sixteen-year resident, she had left nursing to run a bed-and-breakfast business at a separate building, near Lake Travis. While driving her children home from soccer practice, the children noticed a plastic toy vampire, usually attached by suction cups to the truck window, was missing. She turned around, retracing her route through the residential area at about 15 mph, and told the children to unbuckle themselves so they could look out of the window for the missing toy.
This decision followed a number of earlier decisions by the Rehnquist Court favoring broad discretionary authority for police officers. In Whren v. United States (1996), the Court upheld the authority of police officers in unmarked cars to stop drivers for routine traffic offenses. The Court also permitted officers to frisk people whom they see running in "high crime neighborhoods" or in other suspicious circumstances (Illinois v. Wardlow 2000). As the issue of "racial profiling" by law enforcement officers became increasingly controversial, the Court moved to broaden the rights of police officers to make legal an officer's discretionary stops and searches.
[Impact/Consequences:]
Bart Turek resigned from the Lago Vista police force. Atwater and her husband had to pay huge legal fees, which forced them to sell their house, close their bed-and-breakfast business and convert it into their home.
During oral arguments, when Justice David Souter asked Atwater's attorney, Robert deCarli, whether arrests for minor offences were a widespread problem, the only example deCarli provided was one of a girl taken into custody in the D.C. Metro subway system for eating french fries. Justice Souter, formerly the attorney general of New Hampshire, believed that safeguards instituted by most states, as well as political accountability, would keep the problem from escalating.
Dissenters pointed out that arrests for minor offences are sometimes used as "fishing expeditions" to find incriminating evidence of other crimes. In particular, it was feared that the majority decision would be used by authorities to evade laws against racial profiling and to harass citizens by putting them in jail prior to trial, even if officials could not get them convicted at a trial.
[Quotes:]
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
Fifth Amendment, December 1791
"It's not a constitutional violation for a police officer to be a jerk."
--Justice Anthony Kennedy, 2001, Atwater v. City of Lago Vista oral arguments
"Atwater's arrest satisfied constitutional requirements. It is undisputed that Turek had probable cause to believe that Atwater committed a crime in his presence. Because she admits that neither she nor her children were wearing seat belts, Turek was authorized (though not required) to make a custodial arrest without balancing costs and benefits or determining whether Atwater's arrest was in some sense necessary. Nor was the arrest made in an extraordinary manner, unusually harmful to her privacy or physical interests. Whether a search or seizure is "extraordinary" turns, above all else, on the manner in which it is executed. Atwater's arrest and subsequent booking, though surely humiliating, were no more harmful to her interests than the normal custodial arrest...Accordingly, we confirm today what our prior cases have intimated: the standard of probable cause "applie[s] to all arrests, without the need to ‘balance' the interests and circumstances involved in particular situations." If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender."
--Justice David H. Souter, 2001, Atwater v. City of Lago Vista opinion
"The Fourth Amendment guarantees the right to be free from "unreasonable searches and seizures." The Court recognizes that the arrest of Gail Atwater was a "pointless indignity" that served no discernible state interest, and yet holds that her arrest was constitutionally permissible. Because the Court's position is inconsistent with the explicit guarantee of the Fourth Amendment, I dissent. A full custodial arrest, such as the one to which Ms. Atwater was subjected, is the quintessential seizure. When a full custodial arrest is effected without a warrant, the plain language of the Fourth Amendment requires that the arrest be reasonable."
Justice Sandra Day O'Connor, 2001, Atwater v. City of Lago Vista dissent
"Such unbounded discretion carries with it grave potential for abuse. The majority takes comfort in the lack of evidence of "an epidemic of unnecessary minor-offense arrests." But the relatively small number of published cases dealing with such arrests proves little and should provide little solace. Indeed, as the recent debate over racial profiling demonstrates all too clearly, a relatively minor traffic infraction may often serve as an excuse for stopping and harassing an individual. After today, the arsenal available to any officer extends to a full arrest and the searches permissible concomitant to that arrest. An officer's subjective motivations for making a traffic stop are not relevant considerations in determining the reasonableness of the stop. But it is precisely because these motivations are beyond our purview that we must vigilantly ensure that officers' poststop actions--which are properly within our reach--comport with the Fourth Amendment's guarantee of reasonableness. The Court neglects the Fourth Amendment's express command in the name of administrative ease. In so doing, it cloaks the pointless indignity that Gail Atwater suffered with the mantle of reasonableness."
Justice Sandra Day O'Connor, 2001 Atwater v. City of Lago Vista dissent
[Questions to Ponder:]
Do you wear your seat belt? Can you be arrested in your state if you do not wear your seat belt? What penalties does your state impose if you do not wear your seat belt?
Do you think Gail Atwater showed good judgment in telling her children to get out of their seat belts to search for a toy? Do you think that Bart Turek showed good judgment in arresting Gail Atwater instead of issuing her a citation? Does it surprise you that a case like this could end up in the Supreme Court of the United States? Explain.
Minor crimes--misdemeanors--vary from shoplifting to smoking in prohibited areas, such as subway platforms. Is it practical to say that police may arrest people in some of these cases and not others? How are police supposed to remember all the possible exceptions?
Justice O'Connor wrote about the trauma experienced by Atwater's children during her exchange with Officer Turek. Who do you blame for the trauma?
In many states, if a child is injured in a car and is found not to be wearing a seat belt, the parent can be charged with neglect or abuse. Were there childrens' rights in this case that were ignored?
Why did Gail Atwater believe her Fourth Amendment rights had been violated?
Why did the majority of the Supreme Court disagree with her?
What problems did the dissenting justices have with the majority opinion? Do you think, given the narrowness of the decision, that it may be overturned?
Recently, the singer Brittany Spears was arrested for driving with her infant in her arms while trying to avoid paparazzi. But she was not arrested for violating California's seat belt laws. Do you think that she should have been arrested? Should all people be treated equally?
Do you agree with the decision in Atwater? Explain what your decision would have been.
[Selected Bibliography:]
Ball, Andrea, "Soccer Mom Gets Her Day in Court," Austin American-Statesman, December 3, 2000, p. A1.
Frase, Richard S., "What Were They Thinking? Fourth Amendment Unreasonableness in Atwater v. City of Lago Vista." Fordham Law Review, Vol. 71, pp. 329-421, November 2002.
Garbus, Martin. Courting Disaster: The Supreme Court and the Unmaking of American Law. (New York: Owl Books, 2002.)
Greenhouse, Linda, "Divided Justices Back Full Arrests on Minor Charges," New York Times, April 25, 2001.
Stutz, Terrence, "Buckling In: Woman Drives Seat Belt Case to Supreme Court," Dallas Morning News, July 3, 2000, p. 23A.
Tushnet, Mark. A Court Divided: The Rehnquist Court and the Future of Constitutional Law. (New York: W.W. Norton & Company, 2005.)
[Gateway Links:]
FindLaw for Legal Professionals Atwater v. City of Lago Vista
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=99-1408
Oyez Supreme Court Multimedia Atwater v. City of Lago Vista
http://www.oyez.org/oyez/resource/case/1149/
Baldwin, James: (1924-1987) Author and a staunch advocate of civil rights, who was born and raised in the Harlem slums of New York City. Baldwin's most important novel, Go Tell It On The Mountain (1953), his non-fictional The Fire Next Time (1963), and his play Blues for Mr. Charlie (1964) established him as the literary successor of Richard Wright and America's most important black writer in the 1950s and 1960s. Baldwin's work explored the idea that African Americans are victimized by the "guilty imaginations of whites who invest him (blacks) with their hate and longings." In his famous 1949 essay, "Everybody's Protest Novel," Baldwin challenged Richard Wright's literary writings as a rejection of life and the denial of the beauty and power in every human being. The two men became personal and literary opponents with Wright accusing Baldwin of betraying all African-American writers in favor of personal and self-centered musings.
Bank of America v. Banks: Women/Gender--Marriage & Family (Feme Covert/Sole Status, Property & Business)
Barber v. Barber: Decided by a vote of 6 to 0.
A woman legally separated from her husband has the right to sue her husband for the collection of legal alimony in courts of equity as long as a "next best friend" (usually a male but not always depending on the state) files the suit. The suit cannot be filed directly by her in a court of law but must be filed in a court of equity because as a feme covert she is "deemed to be under the protection of her husband," and can sue him, or anyone, only with his consent. She can file this suit even if she lives in a different state from her husband.
Barrett v. Failing: Women/Gender--Marriage & Family (Divorce, Alimony, Property Rights)
Barrows v. Jackson, 346 U.S. 249: 1953: In this racially restrictive covenant case, the Supreme Court expanded upon Shelley by disallowing damage awards when racial covenants were violated. Barrows had been awarded damages when she sued Jackson for violation of a restrictive covenant that barred the sale of Jackson's property in Los Angeles to a "non-Caucasian." The Court upheld a decision by a California District Court of Appeals that determined the awarding of damages a state action that discriminated against African Americans.
Bein v. Heath: Decided by a vote of 6 to 0.
Under Louisiana law, a wife can sell or borrow money using her property as security, which she owns separate from her husband. In this case, the wife claimed that the money was then loaned to her husband, who became insolvent. Court maintained that the holder of the mortgage may seize the woman's separate property because she committed fraud in borrowing the money to be used for her husband, which is against the law of the state of Louisiana.
Bellotti v. Baird: Court upheld a state law requiring the consent of a judge or a parent in the case of a minor seeking an abortion.
[Gateway Links:]
http://www.oyez.org/oyez/resource/case/35/
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=443&invol=622
Bennett v. Bennett: Court held the discretionary powers of the Oklahoma Territory to act on behalf of a woman filing for divorce, to be awarded temporary alimony and attorney fees until a final divorce settlement. Involves the efforts of the husband to hide assets and ignore court decrees.
Berea College v. Kentucky, 211 U.S. 45: 1908: The Supreme Court upheld a Kentucky law passed in 1904 making it illegal to educate white and black students in the same institution. The small private Berea College, which had been integrated for over fifty years, was forced to segregate by the new state law, which was aimed solely at the college, since there were no other integrated schools in the state. The question before the Court was whether a state legislature could force a private college or school to segregate. In the hearing before the state Supreme Court, Kentucky presented a blatantly racist argument, contending that "if the progress, advancement and civilization of the twentieth century is to go forward, then it must be left not only to the unadulterated blood of the Anglo-Saxon-Caucasian race, but to the highest types and geniuses of that race." The Court's ruling permitted states to ban voluntary as well as obligatory contacts between the races. It signaled approval for state and local legislatures to separate the races without heeding the Court's call for equal facilities as proclaimed in the Plessy case.
Bethel School District v. Fraser: Argued March 3, 1986; decided July 7, 1986. Vote of Court: 7-2
[Battle]:
Bethel High School in Spanaway, Washington held a school-wide assembly on April 26, 1983 so its 600 students could listen to speeches about candidates running for student-elected offices. Seventeen-year-old senior Matthew Fraser nominated Jeff Kuhlman to serve as student government vice president. Matt's nominating speech described his candidate in terms of an "elaborate, graphic, and explicit sexual metaphor." Although no specifically obscene language was used, some students were embarrassed while others shouted out and three used gestures to "graphically simulate" Fraser's words. The students were in such an uproar that one teacher had to abandon ten minutes of class time to discuss the speech. The following morning, the assistant principal informed Fraser that he was in violation of a school rule prohibiting use of obscene language, which also stated that "Conduct which materially and substantially interferes with the educational process is prohibited, including the use of obscene, profane language or gestures." Going through a review procedure, the school ultimately suspended Matthew Fraser for three days and struck his name from the ballot of prospective graduation speakers although, ranking second in his class, he was to have been salutatorian. When he was subsequently written in by his classmates, receiving enough votes to speak at commencement, the school continued to enforce his ban.
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]:
Chief Justice Warren Burger wrote the opinion of the Supreme Court, which overturned the lower courts and backed the school district's limits on disruptive speech. The Court found that society's interests in teaching students civil discourse as part of the democratic system of government outweighed Fraser's right to use vulgar speech. It also reaffirmed that the rights of children in a public school are not the same as adults in other settings. Tinker v. Des Moines was a clear case of non-disruptive, political speech; Matthew Fraser's speech was a sex-laden monologue with only the most tangential relationship to political speech. Finally, the Court noted that the high school students were essentially a captive audience, and that the content of Fraser's speech was inappropriate for the younger members of the audience and insulting to teenage girls; it also held that the school had a clear obligation to protect classmates from Fraser's vulgar and offensive language.
Dissenting Justices Marshall and Stevens questioned the degree that Matthew Fraser's speech had disrupted the high school's educational process.
[Context]:
Matt Fraser had a fine academic record, was second in class at the time of the speech, was a member of the Honor Society, and had twice won "Top Speaker" at the state debate championships. He wrote the speech about an hour before the assembly and showed the draft to three teachers. Two teachers warned him that it was inappropriate, that he probably should not deliver it, and that if he did it might have "severe consequences" although nobody specifically mentioned the school's "Disruptive Conduct" rule. He went ahead and delivered the speech he had drafted.
[Impact/Consequences]:
The ruling continued to maintain the distinction between the First Amendment free speech rights of minors and adults. It clarified Tinker and Papish, making it clear that non-disruptive political speech was protected, while disruptive non-political speech was not. Bethel affirmed the right of school districts to determine which behaviors are impermissible in a school setting, provided that students are properly notified and have due process opportunity to appeal arbitrary application of school standards.
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]:
"I know a man who is firm--he's firm in his pants, he's firm in his shirt, his character is firm--but most ... of all, his belief in you, the students of Bethel, is firm. Jeff Kuhlman is a man who takes his point and pounds it in. If necessary, he'll take an issue and nail it to the wall. He doesn't attack things in spurts--he drives hard, pushing and pushing until finally--he succeeds. Jeff is a man who will go to the very end--even the climax, for each and every one of you. So vote for Jeff for A. S. B. vice-president--he'll never come between you and the best our high school can be."
--Matthew Fraser, April 26, 1983 full text of speech to school assembly
"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."
--William Coats, attorney for Bethel School District, April 17, 2001 quote in David Hudson article at freedomforum.org
"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?"
--Chief Justice Warren Burger, 1986, Bethel School District v. Fraser opinion
"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."
--Chief Justice Warren Burger, 1986 Bethel School District v. Fraser opinion
"'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."
--Justice John Paul Stevens, 1986 Bethel School District v. Fraser dissent
[Questions to Ponder]:
One key to the Supreme Court's decision in Bethel is disruption. Why do you think the majority of the Court thought that sexual speech is more disruptive than political speech? Can political speech be more disruptive than sexual speech? What about sexist or racist speech? Could Matthew Fraser have reasonably anticipated that his sexual innuendos would be disruptive?
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]:
Bernhardt, William G., "Constitutional Law: Freedom of Speech in the Public Schools--Fraser v. Bethel School District Revisited," Oklahoma Law Review 39 (1986): 473--519.
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]:
American Bar Association: Key Supreme Court Cases:
http://www.abanet.org/publiced/youth/sia/holtcases/bethel.html
FindLaw for Legal Professionals:
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=478&invol=675
First Amendment Center:
http://www.freedomforum.org/templates/document.asp?documentID=17681
Matthew Fraser speaks out on 15-year-old free-speech decision by David Hudson:
http://www.freedomforum.org/templates/document.asp?documentID=13701
Lesson Plan Case Study Handout:
http://www.firstamendmentschools.org/resources/handout1a.aspx?id=13969
The Missouri Bar: Lesson Plan, The First Amendment and Teenagers:
http://www.mobar.org/teach/lesson.htm
Oyez Supreme Court Multimedia:
http://www.oyez.org/oyez/resource/case/36/
Prentice-Hall at School: Supreme Court Cases:
http://www.phschool.com/atschool/supreme_court_cases/bethel.html
University of Houston Law Center:
http://www.law.uh.edu/teacher/bethel/
University of Missouri-Kansas City Law School, Speech Rights of Public School Students:
http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/studentspeech.htm
Black Cabinet: (1934-1945) A group of African Americans who received appointments to various government agencies and served as informal advisors to President Franklin Roosevelt, who began appointing blacks to these positions in response to the growing importance of the African-American vote in the 1930s. Of the 45 blacks receiving appointments, those who advised FDR as members of this informal "black cabinet" included Robert L. Vann, editor of the Pittsburgh Courier, who served in the Attorney General's office; William H. Hastie, a civil rights attorney, in the Department of the Interior; Robert C. Weaver, an economist, also in the Interior Department; Lawrence A. Oxley, a social worker, in the Department of Labor; Edgar Brown, president of the United Government Employees, in the Civilian Conservation Corps; and Mary McLeod Bethune, founder of Bethune-Cookman College, who was named head of the Negro Division of the National Youth Administration.
Black Codes: (1865-1867) Laws and proclamations restricting the civil rights of the formerly enslaved African Americans that were passed in most southern states at the end of the Civil War. The harshest provisions used vagrancy and apprenticeship laws to bind the freedmen to the land, limiting their personal freedom and relegating them to a status similar to serfs in Eastern Europe. The U. S. Congress reacted to these laws by imposing military rule over the South and passing civil rights legislation. The Codes also energized the drive for the 14th and 15th Amendments to the U. S. Constitution, extending citizenship to all African Americans and suffrage to black males.
Bob-Lo Excursion Co. v. People of the State of Michigan, 333 U.S. 28: 1948: In this case, a Canadian company that owned most of the property on Bois Blanc ("Bob-Lo") Island in Ontario prevented an African-American high-school student, Sarah Elizabeth Ray, from participating in a school outing to the island's amusement park. She was not allowed to travel on the steamship ferry operated by the Bob-Lo Company because of her race. All "negroes and disorderly persons" were forbidden access to the island by company policy. The Recorder's Court for Detroit along with the Michigan Supreme Court found Bob-Lo Excursion Company in violation of Michigan's Civil Rights Act, fining the company $25. The company appealed the case to the U.S. Supreme Court, asking the Court to hold the state's civil rights act unconstitutional because it infringed upon the power of Congress to regulate interstate and foreign commerce. The attorney's for Bob-Lo used the precedent of Morgan v. Virginia (1946), wherein the Court had overthrown a Virginia segregation law on the grounds that the law ran counter to the right of the U. S. Congress to regulate interstate travel. The Court upheld the Michigan civil rights law, however, by looking at the issue as a matter of local commerce rather than foreign commerce, because the only access to the island was from Detroit, Michigan, where most of its customers lived. In affirming the ruling of the lower courts, the Supreme Court signaled its willingness to protect the civil rights of blacks, thus preparing the way for Brown v. Board of Education (1954).
Bolling v. Sharpe, 347 U.S. 497 Bolling v. Sharpe 347 U.S. 497: 1954: This case was linked to a group of four other cases that went before the U. S. Supreme court as one of the landmark Brown v. Board of Education cases, which overturned Plessy v. Ferguson. This case differed from the other cases subsumed under Brown, which argued that school segregation violated the equal protection clause of the Fourteenth Amendment. Blacks residing in Washington D. C., could not use the Fourteenth Amendment, which prohibited states from denying citizens equl protection of the laws but not the federal government. In Bolling, the Court ruled that discrimination can be "so unjustifiable as to be violative of due process" and that segregation in the District of Columbia was such a case. This ruling used the Fifth Amendment's guarantee of due process to extend the Court's ruling regarding states to the federal government. It's opinion clearly said as much: "In view of our decision that the Constitution prohibits it's the states from maintaining racially segregated public schools, it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government." Although Bolling was linked by the Court to the other cases heard under the nomenclature Brown v. Board of Education, it was not argued by an NAACP attorney.
Bork, Robert: This conservative legal scholar and former federal judge is most famous for the controversy surrounding his 1987 nomination to the Supreme Court. Pro-choice activists opposed Bork because his "strict constructionist" views on privacy (particularly on Griswold v. Connecticut) indicated that he would vote to over turn Roe v. Wade. Bork had expressed other extreme views on freedom of speech and the Equal Protection Clause, but he backed down from some of these stances during the hearing. The Senate rejected his nomination by a vote of 58-42. As a result of the nomination, his name has become a verb, "to bork," meaning to harm a judicial nominee's chances at appointment through a vigorous campaign publicizing his views or character.
In 1973, Bork played an important role in the "Saturday Night Massacre" during the Watergate era. When beleaguered president Richard Nixon ordered the Justice Department to fire Watergate Special Prosecutor Archibald Cox, both Attorney General Elliot Richardson and Deputy Attorney General William Ruckleshaus resigned rather than carry out the order. As Solicitor General, Bork was next in line at the Justice Department, and he fired Cox at Richardson's suggestion. Bork served as acting attorney general until 1974 when he resumed his old position as Solicitor General.
Bork served on the U.S. Court of Appeals for the D.C. Circuit from 1983 to 1988 and continues to write and lecture about "strict constructionism" and how liberalism, in his opinion, is a dangerous threat to American society.