NAACP Paper

Tushnet NAACP Paper

Winter 2012

Mark J. Richards, Ph.D.

Constitutional Law II

This paper will count for 10 percent of your overall course grade. Please include your name on the first paper but do not use a cover page. The paper should be a minimum of two full pages and a maximum of three full pages.

The paper covers The NAACP's Legal Strategy Against Segregated Education, 1925-1950 by Mark V. Tushnet. The paper will be due Tuesday, March 20, 2012 and we will hold a discussion of the book on that day. Your attendance is required.

Grading criteria (I will grade using a rubric based on these criteria):

Demonstrate understanding of the book's concepts.

Demonstrate that you read the book by citing it correctly and using brief, relevant quotations.

Answer the questions directly.

Write with correct grammar, usage and spelling.

Write with clarity and concision.

Citations:

The primary source will be the Tushnet book so you can cite key ideas and direct quotes with parenthetic cites as (Tushnet page number), e.g. (Tushnet 123). If you are citing a secondary source contained within the book then you should cite as: (case name or author name, year, page, as cited in Tushnet page), e.g. (Brown v. Board of Education 1954, 513, as cited in Tushnet 123) or (Martin Luther King 1960, 513, as cited in Tushnet 123). I do not need a reference page.

Content of paper.

Part I. Each student will sign up to answer a particular question from the book. Your answer should be about 1 page. You will be expected to explain your answer to the class during the discussion of the book.

Part II. (about 1 page; everyone writes on this question), Chapter 4: Thurgood Marshall and the Maryland Connection

14. What factors led to success or failure in litigation? (You may focus on 1-2 factors.)

Part III. (about 1 page; everyone writes on this question, focusing on either Sweatt or McLaurin), Chapter 7: The Strategy of Delay and the Direct Attack on Segregation

23. How did the justices' opinion in Sweatt or McLaurin (choose one only) pave the way for a direct attack on the constitutionality of segregation?

To guide your reading of the book, I am including all of the questions below, even though you are not responsible for answering all of them in your paper. Please circle the one you signed up for in part I.

The NAACP's Legal Strategy Against Segregated Education, 1925-1950

Mark V. Tushnet

Questions for PLS 307, Professor Mark Richards

Introduction

1. What are the guiding theories of Tushnet's approach?

Chapter 1: Setting the Course: The Grant from the Garland Fund

2. Why was W.E.B. DuBois critical of litigation?

3. How did advocates of litigation respond to the "economic instrumentalist" perspective?

4. How did political skills and resources affect the NAACP in the early years?

Chapter 2: The Legal Background: From Margold to Houston

5. What was the strategy of the Margold Report?

6. Why didn't they focus on equalization of resources?

7. How was the strategy shaped by the legal environment?

8. Why did the NAACP prefer black lawyers?

9. Why was Houston appointed as special counsel?

10. How did Houston change Margold's strategy?

Chapter 3: The Influence of the Staff

11. How did the need to organize the NAACP membership and strengthen it against Communist competition influence the litigation strategy?

12. Why did Houston pursue a flexible strategy of litigation?

13. Why did Thurgood Marshall get a full-time NAACP position?

Chapter 4: Thurgood Marshall and the Maryland Connection

14. What factors led to success or failure in litigation?

Chapter 5: Securing the Precedents: Gaines and Alston

15. What was the significance of the Gaines case?

16. How did it enable a shift in strategy?

17. What were some of the difficulties encountered in the pay equalization cases?

Chapter 6: The Campaign in the 1940s: Contingencies, Adaptations and the Problem of Staff

18. What were some of the problems with the university cases?

19. What problems did they encounter with salary suits?

20. How did this lead to a change in strategy?

21. How did the NAACP change institutionally in the 1940s? Why?

Chapter 7: The Strategy of Delay and the Direct Attack on Segregation

22. What factors led Marshall to seek a direct attack?

23. How did the justices' opinions in Sweatt and McLaurin pave the way for a direct attack?

24. What was the relevance of the sociological argument?

25. What was the relevance of legal realism?

Conclusion: Some lessons from the campaign

26. Ethics: Did the NAACP solicit and/or manipulate clients?

27. Did the NAACP represent the black community?

28. Why is the internal explanation of the NAACP's legal actions better than the external explanation?

Exam 1 Review Sheet

Constitutional Law II
Mark J. Richards, Ph.D.
Exam 1 Review Sheet

This exam is worth ten percent of your overall course grade and will be comprised of 30 multiple choice questions.

For cases listed, I expect you to be familiar with the issue, holding, and key parts of the reasoning of the opinion of the Court and the dissenting opinions, unless I write “focus on” after case name.

Legal reasoning
Four elements of legal reasoning
Why do legal actors use legal reasoning?
Legal positivism
Legal realism
Brandeis brief
Judges make the law
Stare decisis: definition, vertical, horizontal
Justification of stare decisis

Constitutional Interpretation
Interpretivism
Noninterpretivism
Textualism
Moral reading
Brennan on adaptability of Constitution
Activism
Restraint
Originalism: definition, justifications, criticisms
Supreme Court decision making
Attitudinal model
Strategic model
Jurisprudential regime theory

First Amendment: Freedom of Expression
Threshold test
Two track doctrine
Content-neutral
Content-based
Standard of review
Strict scrutiny
Intermediate scrutiny
Compelling interest
Narrowly tailored
Least restrictive means
Texas v. Johnson (1989)
Cohen v. California (1971)
Know different levels of protection for print, broadcast, cable, Internet and video games
The New York Times Company v. Sullivan (1964)
Red Lion Broadcasting Co. Inc. v. FCC (1969): focus on why broadcast media receive less first amendment protection
FCC v. Pacifica Foundation (1978)
Reno v. ACLU (1997)
Brown v. Entertainment Merchants Association (2011)
Schenk v. United States (1919): focus on clear and present danger test
Gitlow v. New York (1925): focus on: compare majority’s reasonability test to Holmes’ (dissenting) clear and present danger test
Dennis v. US (1951)
Brandenburg v. Ohio (1969)

First Amendment: Religion
Establishment clause
Prayer in schools – strictness of Court's approach
Aid to schools – Court's accommodation of such aid
Lemon v. Kurtzman (1971)
Zobrest v. Catalina Foothills School District (1993): focus on holding, Rehnquist’s reasoning
Zelman v. Simmons-Harris (2002): focus on holding, Rehnquist’s analytic test (neutral wording, benefits go to a broad class not defined by religion)
Free exercise clause
Sherbert v. Verner (1963) Focus on: It had set standard of review as strict scrutiny but was severely limited in Oregon v. Smith.
Employment Division, Department of Human Resources of Oregon v. Smith (1990)
Church of the Lukumi Babalu Aye v. City of Hialeah (1993)

Fourth Amendment
Shift of Court to a less libertarian stance in mid-1980s
Exceptions to warrant requirement
Relation of plain view and plain feel to reasonable expectation of privacy (Minnesota v. Dickerson)
Good faith exception to exclusionary rule
Terry v. Ohio (1968)
United States v. Leon (1984)
Safford v. Redding (2009)

Eighth Amendment
Governor Ryan's approach to capital punishment in Illinois
Furman v. Georgia (1972) and Gregg v. Georgia (1976): focus on holdings and reasons Brennan and Marshall opposed death penalty in all circumstances
Baldus study – effect of race of victim and perpetrator on capital sentencing
McCleskey’s three challenges to Georgia’s system
Comparison of execution of minors to execution of mentally retarded : culpability and consensus of states
McCleskey v. Kemp (1987)
Roper v. Simmons (2005)

Establishment Clause

ESTABLISHMENT CLAUSE
Constitutional Law II

Dr. Mark J. Richards

I. Overview

A. The Text

First Amendment: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

B. Everson v. Board of Education of Ewing Township (330 U.S. 1, 1947)

Applied establishment clause to states based on the 14th Amendment (incorporation).



II. Main policy areas - examples

A. Prayer in public schools

1. Engel v. Vitale, 370 U.S. 421, 1962. Establishment clause does not permit state school officials to compose an official school prayer of the state and require it to be recited daily.

2. Lee v. Weisman, 505 U.S. 577, 1992. 5-4. Establishment clause does not permit public schools to include clergy offering prayers at a public graduation ceremony.
Key points: risk of coercion to school age students, and prayer bears imprint of the state

3. Santa Fe Independent School Dist. v. Doe, 530 U.S. 290, 2000. Establishment clause does not permit student-led "invocations" before high school football games.
Court uses aspects of Lemon test (no secular purpose), and expresses concerns with coercion and endorsement of religion.

B. Religious displays in public

1. Lynch v. Donnelly, 465 US 668, 1984. 5-4. The establishment clause does not prohibit a municipality from including a crèche, or Nativity scene, a part of an annual Christmas display

2. Allegheny County v. Greater Pittsburg ACLU, 492 US 573, 1989. 6-3.
Majority holds that display of crèche violates the establishment clause (Blackmun writes opinion of Court, with Brennan, Marshall, Stevens and O'Connor)

Display of menorah does not violate establishment clause (Court is fractured: Blackmun + O'Connor + Kennedy, Rehnquist, White, Scalia)

C. Aid to public schools, activities in public schools

Vouchers, public teachers in private schools, tax deductions, use of school facilities.

In some cases establishment clause and free speech clause come into conflict. E.g. Widmar v. Vincent, 454 U.S. 263, 1981. 8-1. Court holds that free speech clause trumps establishment clause regarding use of university facilities by religious student group. Also, see Rosenberger v. University of Virginia (1995).

Covered in detail below

D. Others

Edwards v. Aguillard, 482 U.S. 578, 1987. 7-2. Court struck down a Louisiana law. Louisiana had attempted to prohibit the teaching of evolution unless accompanied by teaching of "creation science."


III. Lemon v. Kurtzman (403 U.S. 602, 1971)

Also includes Earley v. DiCenso and Robinson v. DiCenso

A. Facts:






B. Issues

1. Does Rhode Island's Salary Supplement Act, which authorizes payment of a salary supplement to nonpublic elementary school teachers, violate the establishment clause of the first amendment?

2. Does Pennsylvania's Nonpublic Elementary and Secondary Education Act, which authorizes payment to nonpublic elementary and secondary schools to reimburse the cost of teachers' salaries, textbooks and instructional materials in particular secular subjects, violate the establishment clause of the first amendment?

3. What is the appropriate standard of review to use in assessing the constitutionality of the Rhode Island and Pennsylvania statutes under the establishment clause of the first amendment?

C. Holdings (C.J. Burger)

1. Rhode Island's Salary Supplementary Act, which authorizes payment of a salary supplement to nonpublic elementary school teachers, violates the establishment clause of the first amendment.

2. Pennsylvania's Nonpublic Elementary and Secondary Education Act, which authorizes payment to nonpublic elementary and secondary schools to reimburse the cost of teachers' salaries, textbooks and instructional materials in particular secular subjects, violates the establishment clause of the first amendment.

3. In assessing the constitutionality of government actions under the establishment clause of the first amendment, "the statute must have a secular legislative purpose, its principal or primary effect must be one that neither advances nor inhibits religion; finally the statute must not foster 'an excessive government Entanglement with religion.'"

D. Reasoning

1. On the Lemon test: The first two prongs of the test are derived from the Court's previous precedents (namely Schempp). The third prong is based on the idea that the Court, in keeping with the history and tradition of the establishment clause, wants to avoid government surveillance of religion and political division along religious lines. The third prong is a question of degree.

2. On the Rhode Island statute: The Court looks only at entanglement, and does not address the first two prongs (failure to meet any prong makes it unconstitutional). Discuss: would it pass the first two prongs? Rhode Island's statute would foster entanglement because teachers are under religious control, are teaching in religious settings, and because the state will require excessive monitoring such as examining records to ensure neutrality.

3. On the Pennsylvania statute: Entanglement will be fostered due to the restrictions and surveillance that are necessary to ensure that teachers act neutrally and that funds go only to secular subjects. In addition, Pennsylvania provides aid directly to the schools. Discuss: would it pass the first two prongs?

E. Concurrence (Douglas, joined by Black)

According to wall of separation theory embodied by Everson, no tax can be levied to support religious institutions.

G. Analysis: Isn't the state placed in a catch-22 situation, where they either violate the establishment clause because they are too involved in monitoring or not involved enough?


IV. Zobrest v. Catalina Foothills School District (509 U.S. 1, 1993)

A. Facts

Parents of James Zobrest, a deaf child, sued the school district after it refused to provide James with a sign-language interpreter at his Roman Catholic high school. The parents argue that the Individuals with Disabilities Education Act (IDEA) and the free exercise clause require the district to do so.

B. Holding (Rehnquist, 5-4)

The establishment clause of the first amendment does not forbid the Catalina Foothills School District from providing a sign-language interpreter for a deaf student at a Roman Catholic High School.

C. Reasoning

1. Court has never held that religious institutions could not participate in public welfare programs, otherwise the fire and police departments could not protect a church.

2. Programs are constitutional as long as they are neutrally worded and provide benefits to a broad class of citizens that are not defined by religion. IDEA fits this description.

3. Stare decisis. Mueller v. Allen (1983) allowed Minnesota taxpayers to deduct educational expenses from state income tax. Choice is made by private individuals. Witters v. Washington Dept. of Services for Blind (1986) allowed a blind person to use money from a Washington state vocational assistance program to study at a Christian college to become a pastor, missionary or youth director. In Zobrest, choice of where money goes is made by Zobrest's parents, and the money goes to his parents.

4. Interpreter will merely faithfully interpret what is said, and will not engage in indoctrination.

D. Dissents

1. Blackmun (joined by Souter on constitutional points): Precedent not as clear as majority suggests (see Aguilar v. Felton (1985) [since overruled in Agostini v. Felton], Meek v. Pittenger (1975) [strikes down direct loans of equipment and material to private schools] and School Dist. Of Grand Rapids v. Ball (1985) [strikes down law allowing public school teachers to teach at private schools]).

2. Blackmun: Interpreter will serve as conduit for student's religious education






V. Zelman v. Simmons-Harris (2002)

A. Facts
1. Disastrous state of Cleveland public schools

2. State of Ohio takes control and creates voucher program

3. Options for voucher program:

4. other facts

B. Issue: Does Ohio's voucher program violate the establishment clause of the first amendment (as applied to the states through the fourteenth amendment)?

C. Holding: Ohio's voucher program does not violate the establishment clause.

D. Reasoning (Rehnquist)

1. Is the effect of the law to advance or inhibit religion?

2. Precedent: Zobrest, Witters, etc.

3. Is government program neutral with respect to religion?

4. Does program provide assistance to a broad class of citizens, not defined by religion, who are making private, genuine choices?

5. Program doesn't send message of endorsement of religion.

6. Percentage of $ going to religious schools is not relevant.

E. Concurring, O'Connor

1. There are many options open to parents, such as community schools and magnet schools.

2. Amount of $ spent on voucher program pales in comparison to other government funding for religious institutions (e.g. tax breaks).

F. Thomas, concurring

Many inner-city schools "deny emancipation to urban minority students."

E. Stevens, dissenting

1. Educational crisis is irrelevant to constitutionality.

2. Most recipients attend religious schools, and this proves the law violates the establishment clause.

3. This decision increases the risk of religious strife.

F. Breyer, dissenting

Parental choice in this law doesn't provide much of a choice for those who wish to avoid horrendous public schools but do not want to send their kids to religious school. It doesn't help taxpayers opposed to funding religious schools.

G. Souter, dissenting

1. This law is not neutral. Regular public schools do not receive vouchers under the program.

2. There is not an even-handed choice made available to parents. Parents cannot choose to spend the voucher at a regular public school. 96.6% of all voucher recipients go to religious schools.

3. Parents have few options to send children to private, non-religious schools. Few of those schools participate, and the limited amount of the voucher discourages these schools from taking many students.

4. Effect of law is to promote state interference with religion. (E.g. Regulations do not allow participating schools to select students on the basis of religion.)

5. Political implications: disputes over paying taxes to support teaching of contrary religious viewpoints.

Free Exercise of Religion

Free Exercise Clause

Constitutional Law II
Professor Mark J. Richards

I. Overview

A. Text of First Amendment: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

B. Long-standing doctrine: Sherbert v. Verner (374 U.S. 398, 1963)

Court overturned denial of unemployment benefits to Seventh-day Adventist who was fired for refusing to work on the Sabbath (Saturday). Court established standard of review: burden on free exercise rights must be narrowly tailored to achieve a compelling government interest. If there is another policy that could achieve the government interest to the same extent, but be less restrictive of the liberty involved, then the government's chosen policy is NOT narrowly tailored.

II. Employment Division, Department of Human Resources of Oregon v. Smith (494 U.S. 872, 1990)

A. Facts

Two Native Americans, Alfred Smith and Galen Black, were members of the Native American Church. They were fired from their jobs at a private drug rehabilitation organization because they used peyote during a religious ceremony. Oregon denied them unemployment compensation because their dismissal was for work-related misconduct.

On remand, the Oregon Supreme Court ruled that Oregon drug laws did not make an exception for the sacramental use of peyote, the first amendment protected sacramental drug use, and Smith was entitled to unemployment benefits.

Other relevant facts?

B. Issues

1. Does Oregon's denial of unemployment benefits based on Smith's sacramental use of peyote violate the free exercise clause of the first amendment?

2. What is the appropriate standard of review for evaluating free exercise claims?

C. Holdings (Scalia)

1. Oregon's denial of unemployment benefits based on Smith's sacramental use of peyote does not violate the free exercise clause of the first amendment.

2. In evaluating free exercise claims, the Court will use the following standard. If prohibiting the exercise of religion is merely the incidental effect of a neutral, generally applicable and otherwise valid provision, the free exercise clause of the first amendment has not been offended.

D. Reasoning

1. Oregon's criminal law is neutral and generally applicable.

2. Sherbert balancing test not applicable in this situation. It should only apply when laws target religion. Otherwise, it produces a right to ignore generally applicable laws.

3. Stare decisis: The only time the Court bars application of a neutral, generally applicable law is when the case involves free exercise and other claims such as freedom of expression. For example, compelled school attendance in the Amish school children case (Wisconsin v. Yoder, 1972)

4. State legislatures can make exceptions.

E. Dissents

1. O'Connor on standard of review (joined by Brennan, Marshall and Blackmun). Court should follow the Sherbert test. The free exercise clause does not distinguish between generally applicable laws and laws that target religion. Few states will be extreme enough to specifically target religion, but Scalia's ruling will limit the scope of the clause to only this situation. The clause should apply more broadly to any situation where free exercise rights are infringed. In addition, the Court's ruling leaves disfavored minority religions with the legislatures as their only recourse, but the first amendment was designed to protect disfavored minorities from the majority tyranny.

2. Blackmun (joined by Brennan and Marshall). They agree with O'Connor on the standard of review, but they disagree that Oregon's action is constitutional under the Sherbert test. The state offers no evidence that allowing a peyote exception would undermine the state's drug laws. In addition, the Native American Church closely regulates the drug and alcohol use of its members.

F. Discussion

1. Is Scalia's opinion based on textualism, originalism, stare decisis, or none of the above?

2. Applications

Are the following government actions constitutional under the free exercise clause? How would your answer differ if you used Sherbert v. Verner rather than Oregon v. Smith?

Arresting a 15-year old Catholic girl for consuming wine during a Church communion service.

Requiring an Amish shop owner to withhold and pay employees’ Social Security taxes. US v. Lee (1982)

Denying tax-exempt status to a non-denominational university that doesn’t allow interracial dating or admit students in interracial marriages. Bob Jones University v. US (1983)

Requiring an Orthodox Jew serving in the military to adhere to military dress code, which did not permit him to wear a yarmulke. Goldman v. Weinberger (1986)

3. Congress later attempted to overturn the Court by passing the Religious Freedom Restoration Act (RFRA), which required strict scrutiny to be used in free exercise cases. The Court limited the use of the act in City of Boerne v. Flores (1997). Discuss separation of powers, judicial review issues.

Are the following government actions constitutional?

Using a historic preservation ordinance to prevent a church from tearing down an old church and rebuilding. City of Boerne v. Flores (1997).

US Customs prohibited a church from importating hoasca tea, which contains hallucinogens determined illegal under the Federal Controlled Substances Act. Gonzales v. O Centro Espirito Beneficiente Uniao Do Vegetal (2006).

Denying prisoners the right to practice Satanism or Wicca. Religious Land Use and Institutionalized Persons Act.

III. Church of the Lukumi Babalu Aye v. City of Hialeah (508 U.S. 502, 1993)

A. Facts

Church of the Lukumi Babalu Aye purchases land in Hialeah, Florida, for the purpose of building a church, etc. and practicing Santeria. Hialeah city council passes a number of ordinances outlawing ritual animal sacrifice.

Other relevant facts?

B. Issue

Do the Hialeah city council ordinances that outlaw ritual animal sacrifice violate the free exercise clause of the first amendment?

C. Holding (Kennedy)

The Hialeah city council ordinances that outlaw ritual animal sacrifice violate the free exercise clause of the first amendment.

D. Reasoning

1. The law is not neutral, so the Oregon test does not apply. Use of words "sacrifice" and "ritual" in ordinances suggest a lack of facial neutrality, but Court's inquiry also extends to intent of city council, which was expressed through Resolution 87-66.

2. Hialeah's laws are not generally applicable. They do not address non-religious conduct that would threaten public health or constitute cruelty to animals. (Underinclusive.)

3. Hialeah's laws were not narrowly tailored. Protecting against cruelty to animals and achieving proper disposal could have been achieved through less restrictive means (e.g. regulate method of slaughter and disposal).

4. Government interests are not compelling.

E. Concurring opinions

1. Scalia (joined by Rehnquist) would not inquire into the motive of the city council.

2. Souter stresses that this case could be decided without reference to Oregon v. Smith. Oregon is inconsistent with the Court's previous rulings and the Court should reconsider it in a future case.

3. Blackmun (joined by O'Connor). Reiterates O'Connor's opinion in Oregon.

Eighth Amendment

Eighth Amendment and Capital Punishment

Professor Mark J. Richards




I. Text of the eighth amendment


"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."



II. Background


A. Furman v. Georgia (408 U.S. 238, 1972)


This case called into question the constitutionality of the death penalty. However, the Court was fractured and issued five concurring opinions and four dissenting opinions.




B. Gregg v. Georgia (428 U.S. 153, 1976)


The Court upheld Georgia's capital punishment system, which specified mitigating and aggravating circumstances which jurors must consider. Also, Georgia's system required bifurcated trials with separate guilt and sentencing stages. Brennan and Marshall dissented.




III. McCleskey v. Kemp (481 U.S. 279, 1987)


A. Facts


Warren McClesky, an African American man, was convicted of two counts of armed robbery and one count of murder. The victim of his murder was white. McCleskey was sentenced to death, and the Supreme Court of Georgia affirmed. He then brought an appeal in federal court.

Professors David C. Baldus, George Woodworth, and Charles Pulaski conducted a study of over 2,000 murder cases in Georgia in the 1970s. One of the relevant findings is that "even after taking into account 39 nonracial variables, defendants charged with killing white victims were 4.3 times as likely to receive a death sentence as defendants charged with killing blacks. According to this model, black defendants were 1.1 times as likely to receive a death sentence as other defendants." When black defendants kill white victims, they have the greatest likelihood of being sentenced to capital punishment.




B. Issues


Does Georgia's capital punishment structure, which discriminates against defendants based on the race of the defendants and the victims, violate:


- the equal protection clause of the fourteenth amendment as applied to McCleskey?

- the eighth amendment prohibition of cruel and unusual punishments?

- the eighth amendment prohibition of cruel and unusual punishments as applied to McCleskey?




C. Holdings (Justice Powell)


Georgia's capital punishment structure, which discriminates against defendants based on the race of the defendants and the victims, does not violate:

- the equal protection clause of the fourteenth amendment as applied to McCleskey.

- the eighth amendment prohibition of cruel and unusual punishments.

- the eighth amendment prohibition of cruel and unusual punishments as applied to McCleskey.




D. Reasoning


1. On equal protection claim: McCleskey fails to prove that the state acted with purposeful discrimination that had a discriminatory effect on him.

The Baldus study does not prove that McClesky's sentence was based on racial discrimination.

Discretion is inherent in the criminal justice system.

There is no evidence that the Georgia legislature adopted its capital punishment scheme based on racially discriminatory motives.


2. On the eighth amendment claim:

Procedural aspects of the Georgia capital punishment structure limit the arbitrary exercise of discretion.


"In light of the safeguards designed to minimize racial bias in the process, the fundamental value of the jury trial in our criminal justice system, and the benefits that discretion provides the criminal defendants, we hold that the Baldus study does not demonstrate a constitutionally significant risk of racial bias affecting the Georgia capital-sentencing process."

If the Court accepts McCleskey's claim, the danger is that people will begin to challenge all types of sentencing based on gender, ethnicity, facial characteristics, etc.

McCleskey's claim is best presented to a legislature. This is not the role of the Court.


3. On the eighth amendment claim as applied to McCleskey:

The Baldus study can only show a likelihood that race entered into the sentencing of McCleskey, it cannot prove it.

McCleskey's sentence is not disproportionate to the crime.

"Absent a showing that the Georgia capital punishment system operates in an arbitrary and capricious manner, McCleskey cannot prove a constitutional violation by demonstrating that other defendants who may be similarly situated did not receive the death penalty." Leaving room for discretionary leniency does not render capital sentences arbitrary and capricious.




E. Dissents


1. Brennan

The death penalty is in all circumstances cruel and unusual punishment.

In the past, the Court has not required proof that impermissible factors affected individual sentences. Rather, the Court has required defendants to prove that the system under which they were punished posed a significant risk of being affected by impermissible considerations. The Baldus study proves that such a risk actually exists. In addition, the Court's knowledge of the history of Georgia's race-conscious criminal justice system confirms the statistical analysis.


2. Blackmun

A legitimate reason for a conviction should not outweigh a violation of the equal protection clause.


3. Stevens

Baldus study indicates that for extremely serious crimes, prosecutors consistently seek the death penalty, and juries consistently apply it. "If Georgia were to narrow the class of death-eligible defendants to those categories, the danger of arbitrary and discriminatory imposition of the death penalty would be significantly decreased, if not eradicated."


IV. Roper v Simmons, 543 U.S. 551, 2005

A. Facts
Simmons committed murder at age 17, was tried as an adult, and sentenced to death.


B. Issue
Does the execution of minors constitute cruel and unusual punishment under the eighth amendment?


C. Holding
The execution of minors constitutes cruel and unusual punishment under the eighth amendment.


D. Reasoning – Kennedy (5-4 decision)

1. Precedent – “the evolving standards of decency that mark the progress of a maturing society” (Trop v. Dulles 1958).

2. Contrary precedent – Stanford v. Kentucky (1989, 5-4 decision), Court decided the issue present in this case to the contrary. At that time 25 of 37 death penalty states permitted execution of 17-year-old offenders.

3. In Atkins v. VA, 2002, the Court revised Penry v. Lynaugh (1989) and held that execution of a mentally retarded individual constitutes cruel and unusual punishment.The reasoning rested on a national consensus (30 states prohibited the practice), as well as diminished culpability, which undermines the retribution and deterrence rationales.

4. Now, 30 states prohibit execution of minors (12 ban all executions, plus 18 of the 38 death penalty states). This is evidence of a national consensus and undermines Senate’s 1966 reservation for execution of juveniles while ratifying the International Covenant on Civil and Political Rights.

5. The culpability of juveniles is diminished (lack of maturity and responsibility, vulnerable to peer pressure, character is less well formed). This undermines the retribution rationale.

6. The deterrent effect is unclear.

7. Article 37 of the UN Convention on the Rights of the Child (1990) prohibits the practice and has been ratified by all nations except the U.S. and Somalia.


E. Stevens and Ginsburg, concurring
Meaning of eighth amendment is not frozen. See point 1 above.


F. Scalia joined by Rehnquist and Thomas, dissenting

1. Meaning of eighth amendment shouldn’t “be determined by the subjective views of five Members of the Court and like-minded foreigners.”

2. “Words have no meaning if the views of less than 50% of death penalty States can constitute a national consensus.”

3. Infrequency of such executions is irrelevant.

4. Court’s reasoning on culpability of minors is irrelevant given the precedent that guides the Court (evolving standards).

5. UN CRC was not ratified by US.
Senate expressly reserved juvenile executions when ratifying ICCPR.

6. U.S. law should not, and does not, conform to the views of the rest of the world. (E.g. exclusionary rule and abortion rights.)

7. Missouri Supreme Court should be admonished for flagrantly disregarding on-point precedent of Stanford.


G. O'Connor, dissenting


She disagrees with Scalia on the relevance of foreign and international law. Foreign and international law helps inform the Court of evolving standards of decency. 

Oral Argument Preview FCC v. Fox 2012

FCC v. Fox 2012 Supreme Court Simulation Oral Argument Preview

I. Facts

Basic policy (from Fox v. FCC, 613 F.3d 317, 330, 2010, quoting Industry Guidance on the Commission's Case Law Interpreting 18 U.S.C. § 1464, 16 F.C.C.R. 7999, 2001):

The FCC set forth its indecency policy in its 2001 Industry Guidance, in which the FCC explained that an indecency finding involved the following two determinations: (1) whether the material “describe[s] or depict [s] sexual or excretory organs or activities”; and (2) whether the broadcast is “patently offensive as measured by contemporary community standards for the broadcast medium.” . . . Under the policy, whether a broadcast is patently offensive depends on the following three factors: (1) “the explicitness or graphic nature of the description or depiction”; (2) “whether the material dwells on or repeats at length” the description or depiction; and (3) “whether the material appears to pander or is used to titillate, or whether the materials appears to have been presented for its shock value.” 

Focus on Remand Order of November 6, 2006 (p. 323-324) and policy statements and events leading up to this point.

Be familiar with the following incidents and the FCC responses:

Bono, Golden Globes, 2003 – puts networks on notice

*Cher, Billboard Music Awards 2002

*Nicole Richie, Billboard Music Awards 2003

NYPD Blue – dismissed on procedural grounds

Early Show interview with Survivor contestant

Saving Private Ryan

(Note: FCC abandoned its defense of the “profanity” policy.

II. Issue:

Does the FCC's policy on fleeting expletives as expressed in the Remand Order of November 6, 2006, which includes notices of apparent liability against two Fox programs, violate the freedom of expression protected by the first amendment?

(Note we are focusing on first amendment, not fifth amendment.)

III. Holding

Justices voting with the majority should indicate their holding (as if they were writing the majority opinion). Dissenting justices and attorneys should indicate their advocated holding.

IV. Reasoning (from Fox's point of view – pro-speech)

A. Standard of review

1. Content-based regulation of expression invokes strict scrutiny (see Reno v. ACLU).

Policy must be the least-restrictive means of achieving a compelling government interest.

Explain why FCC policy is content-based.

2. Alternatively, broadcast media have been regulated according to intermediate scrutiny (see FCC v. League of Women Voters, 468 U.S. 364, 1984, cited in Fox v. FCC, 17).

Policy must be narrowly tailored to achieve a substantial government interest.

See also, Pacifica, Red Lion for rationale of treating broadcast media differently):

scarcity of airwaves

public licensing

duties to public

broadcast media are “uniquely pervasive” and “accessible” to children

treated differently than print, cable, Internet.

Response of broadcasters:

Most people get broadcast networks through cable or satellite.
With video via Internet, cable and satellite, broadcast media are no longer “uniquely pervasive” or “uniquely accessible.”
Ratings system, V-chip and other blocking devices make broadcast media less accessible to youth.

B. Government Interest

Does the government have a substantial (or compelling) interest in regulating fleeting expletives?

Protecting children from indecent material (see Reno, Pacifica, Brown v. EMA) could be seen as compelling in theory, but . . .

Where is the evidence of harm?

Are fleeting expletives more or less harmful than other allowed expletives?

How does exposure of children to fleeting expletives compare to exposure to violent content or sexual content?

C. Narrowly tailored

1. Does the FCC policy restrict more expression than is necessary to achieve its interest? (Is the FCC policy the least restrictive means of achieving its interest?)

2. Vagueness in definitions of indecency. Too much power in hands of FCC but FCC’s determinations are subjective. FCC does not provide adequate notice. See discussion on pp. 330-332. E.g. F-word not always sexual in meaning.

Arbitary enforcement. Why are some uses of expletives acceptable? Compare Saving Private Ryan or a news interview. Exceptions are not applied consistently.

Vagueness also raises the risk of discriminatory enforcement.

3. Creates chilling effect – leads to self-censorship of protected speech.  Generates fear among local affiliates. E.g. 9/11 documentary not shown because of swearing by firefighters, Pat Tillman memorial service, candidate debate, etc. Could chill sports broadcasts. Chills discussion of sex as well, even when no expletives are mentioned.

4. Delay system with bleeping is not always effective for live broadcasts.

5. Vagueness indicates policy is not narrowly tailored.

6. Community standards test is oppressive in a national context.

7. What are less restrictive alternatives?

-Compare to previous policy that focused on repetitive utterances.

-Should be exceptions for non-literal uses (e.g. Bono at Golden Globes)

-Exceptions based on merits of works? (e.g. Saving Private Ryan) Doesn't this become subjective?

V. Reasoning from FCC's point of view – pro-government)

A. Standard of review – intermediate scrutiny. See IV. A. 2 above.

Pacifica still applies:
Broadcast media are most easily accessible to children.
Availability of video via cable and Internet means adults have other avenues to access indecent material.
V-chips don’t always work for TV and don’t work for radio at all.

B. Substantial government interest

Protecting children from exposure to indecent and profane material (Reno, Pacifica)

Courts sometimes concede this point for the sake of argument.

C. Narrowly tailored. New policy does not restrict more speech than is necessary.

1. Not vague: F-word and s-word are presumptively indecent. F-word: inescapable sexual connotation, extremely, graphically vulgar. S-word: Excretory connotation, etc. Fox knew the words were indecent and edited them out of broadcasts shown later in other time zones.

2. Flexible policy is better than a list. Allows for more speech by enabling exceptions and discretion. An inflexible approach would be underinclusive; a simple list makes it easier to evade the policy.

3. Fair notice was provided. Networks put on notice but not fined after Bono incident.

4. Exceptions can be made as needed: bona fide news and artistic necessity (e.g. news, Saving Private Ryan). FCC will consistently evaluate context.

5. Questionable material can be shown during safe harbor period (after 10 p.m.)

6. V-chip wouldn’t have worked in for the awards show broadcasts.

VI. Policy and normative implications – pro & con

Freedom of expression vs. community standards, morals

Censorship – effect on creators, viewers, business

Paternalism – should government decide for us?

Vagueness of test leading to self-censorship of protected speech

If this policy is overturned, are there no limits on broadcast TV short of obscenity?

Are there other ways for parents to address indecency? (E.g. blocking technology)

Financial consequences for affiliates

Others?

Fourth Amendment

Fourth Amendment

Professor Mark J. Richards

2012

I. Text of the fourth amendment

"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."

II. The shift to a less libertarian view of the fourth amendment

A. Probable cause

1. Generally, probable cause is required for a search and seizure to pass constitutional muster. Aguilar v. Texas (378 U.S. 108, 1964) established two independent requirements for probable cause in cases involving informants. Police must explain how informants know what they know, and why the police believe that the information is accurate. The police need to prove probable cause on both prongs of the test. Prior to 1983, a failure on the part of the government to meet either one of these requirements meant that the search lacked probable cause and would most likely be held unconstitutional.

2. However, the 1983 Illinois v. Gates (462 U.S. 213) decision began the move toward a new legal regime by holding that the two requirements were no longer independent. In a closely related 1984 decision (Massachusetts. v. Upton, 466 U.S. 727), the Court held that the "totality of the circumstances" is enough to justify a finding of probable cause, and stated that more deference should be given to findings of probable cause by lower courts and magistrates.

B. Exclusionary rule

1. Previously, the Court had established that evidence which was obtained through searches based on defective warrants lacking probable cause was to be excluded from consideration in a defendant’s conviction because the means of obtaining such evidence violated the fourth amendment (see Weeks v. U.S., 232 U.S. 383, 1914, and Mapp v. Ohio, 367 U.S. 643, 1961). This is the exclusionary rule, and it served as a major check on police violations of the fourth amendment until it was eviscerated by Leon and Sheppard.

2. Good faith exception

Two 1984 companion cases, United States v. Leon (468 U.S. 902) and Massachusetts v. Sheppard (468 U.S. 981). Leon and Sheppard established a good faith exception to the exclusionary rule. The exclusionary rule no longer applies to situations where the police, acting in good faith, seize evidence in the context of reliance on a warrant which lacks probable cause. Good faith means that the police reasonably believe that the warrant was properly issued. In other words, the police can seize evidence based on a warrant that lacks probable cause, but the evidence can still be used against the defendant if the police acted in good faith.

3. Inevitable discovery exception

Two additional 1984 cases also carved out exceptions to the exclusionary rule. If the police would have inevitably discovered (Nix v. Williams, 467 U.S. 431) the illegally obtained evidence or obtained it through other independent sources (Segura v. U.S., 468 U.S. 796), it does not need to be excluded.

4. Bottom line

The good faith and inevitable discovery exceptions to the exclusionary rule indicate that the Court will be generally less sympathetic to the claims of the accused in search and seizure cases. See: Herbert M. Kritzer and Mark J. Richards. 2005. "The Role of Law in the Supreme Court's Search and Seizure Jurisprudence." American Politics Research 33 (January): 33-55.

III. Exceptions to warrant requirement (See Epstein and Walker 2010, 460-462)

A. Consent

B. Terry searches

1. Terry v. Ohio (1968) permits an officer to frisk an individual under investigation when the officer has a reasonable suspicion that the individual is armed and dangerous.

2. Terry searches are limited to weapons that could be used to harm officers or others nearby.

C. Plain-view, plain-feel exceptions

1. In conducting a stop or a Terry search, if the officer observes an object that plainly appears to contraband, the officer may constitutionally seize the contraband (Michigan v. Long 1983). This is the plain-view exception. The rationale is that no reasonable expectation of privacy has been invaded, so this does not constitute an additional, independent search.

2. The plain-feel exception is analogous to the plain-view exception. "If a police officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect's privacy beyond that already authorized by the officer's search for weapons" Minnesota v. Dickerson (508 U.S 366, 1993).

D. Search incident to arrest

E. Preventing loss of evidence

F. Hot pursuit

G. Drug dogs

H. Areas where there is no reasonable expectation of privacy (e.g. airport security screening)

IV. U.S. v. Leon (468 U.S. 902, 1984) and Massachusetts v. Sheppard (468 U.S. 981, 1984)

A. Facts

What was the problem with the warrant issued in the Leon case?

Lacked probable cause

B. Issue

Should the fourth amendment exclusionary rule be modified so as not to prohibit the prosecutor's use of evidence "obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be unsupported by probable cause"?

Should the unconstitutionally obtained evidence used against Leon be excluded?

C. Holdings (White)

1. The fourth amendment exclusionary rule does not prohibit the prosecutor's use of evidence "obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be unsupported by probable cause."

2. Exclusion is appropriate when:

-The judge issuing the warrant was misled by information on an affidavit that the officer "knew was false or would have known was false except for his reckless disregard for the truth."

-The officer relies on a warrant issued by a judge who failed to act in a neutral and detached manner.

-The officer unreasonably believes that probable cause exists.

-"A warrant is so fatally deficient - i.e. in failing to particularize the place to be searched or the things to be seized - that the executing officers cannot reasonably presume it to be valid."

3. The unconstitutionally obtained evidence used against Leon should not be excluded.

D. Reasoning

1. There are costs to imposing the exclusionary rule; it undermines truth-finding and allows some guilty criminals to go free or plea bargain to reduced sentences.

2. The exclusionary rule is justified by its effect on deterring unconstitutional police searches. However, if the officer is acting reasonably and in good faith, then the rule does not have a deterrent effect in that situation.

3. The exclusionary rule does not deter judges who issue warrants, because judges have no stake in the outcome of particular criminal prosecutions. Therefore, the police should not be punished when judges issue faulty warrants.

4. The text of the fourth amendment does not require the exclusionary rule.

5. Officer Rombach acted reasonably and in good faith, despite the finding of the Court of Appeals that there was not sufficient probable cause to support the warrant.

E. Concurrence

Blackmun argues that if the effect of the ruling is to discourage police compliance with the fourth amendment, the Court may reconsider the ruling.

F. Dissent (Brennan and Marshall)

1. "The right to be free from the initial invasion of privacy and the right of exclusion are coordinate components of the central embracing right to be free from unreasonable searches and seizures." (See Weeks and Mapp.)

2. The fourth amendment restrains the government as a whole, not just the police, so the majority's distinction between the deterrent effects on the police and judges is not textual. Also, both the police and the judiciary are involved in the singular government action of the search.

3. Weighing the costs of exclusion of evidence due to unconstitutional searches and seizures is improper. Such actions are categorically prohibited by the fourth amendment.

4. 1979 GAO study indicates that only 0.4% of all cases declined by federal prosecutors were declined due to illegal search problems.

5. The ruling will encourage police ignorance of the law, and discourage paying careful attention to constitutional warrant requirements. The holding will also discourage careful judicial review of warrant decisions, because even if the judge improperly issues a warrant, the decision will not be overturned if the police acted in good faith.

V. Safford Unified School District v. Redding (2009)

A. Facts

Who was Redding?

Why was she searched?

How was she searched?

B. Issue

C. Holding

D. Reasoning (Souter)

1. What is the standard in a school setting for level of suspicion needed to justify a search?

2. Was there enough evidence to justify a limited search? What could be searched?

3. Why does a search of her bra and underpants go too far?

E. Thomas, concurring in judgment and dissenting in part

1. Why would he hold that the search did not violate the fourth amendment?

2. Why does the dangerousness of the drug not matter?

3. What are the negative policy implications of the Court’s decision