PLS 307 Constitutional Law II
Oral argument paper due: Wednesday, May 20, 2009, in class.
Professor Mark J. Richards
Format: Your paper should be word-processed and submitted on paper. It should be double-spaced and use page numbers. There is no need for a cover page. Just place your name at the top of the first page.
Page requirement: 4-7 pages. Anything less than four full pages will automatically receive an F. Anything written in excess of seven pages will not be graded.
You must participate in oral argument in order to receive a passing grade in the class. The oral argument is scheduled for Wednesday, May 13.
Readings on oral argument, conference deliberations, opinion writing, and opinion days: O'Brien, pp. 175-90
Fourth Amendment
Safford Unified School District #1 v. Redding (08-479)
Relevant case law and readings on Westlaw:
Redding v. Safford Unified School District #1, 531 F.3d 1071, July 11, 2008 (U.S. Court of Appeals, Ninth Circuit).
New Jersey v. T.L.O., 469 U.S. 325, 1985.
Grading: 30% of your overall course grade will be based on this exercise.
Your grade on this exercise will be comprised of the following:
5%: your verbal performance in oral argument exercise
5%: the accuracy of your portrayal of counsel or justice
90%: your use of legal reasoning to support your arguments and respond to the arguments of your opponents. You should include a statement of the issues, and (for justices) your holdings or (for counsel) your advocated holdings.
Oral Argument:
It is imperative that everyone shows up on time (or even early) for the days on which oral argument is scheduled.
Each attorney should take no more than 15 minutes. Attorneys can divide up their time according to the issues but they do not need to do so; overlap is inevitable.
Expectations for attorneys’ presentations: You should not merely read from your brief but be clear, concise and conversational. You should directly answer all of the justices’ questions. You will be interrupted, so be calm and polite. Also, be flexible enough to change your presentation in mid-flight so you will be able to incorporate everything you want to include. If you’ve already clearly answered questions on one issue in your speech, you may not need to present it again. Never talk when a justice begins to speak, or is speaking.
Justices are expected to come well prepared. Your questions should be relevant, demonstrate a familiarity with the issues, and reflect the style and ideology of the justice you are playing. Although the justices’ interruptions can be rude at times, you should strive to exhibit the dignity, stature and intellect of a Supreme Court justice.
The side listed first in the dispute, the petitioner, will speak first at oral argument. For example, in Machiavelli v. Augustine, attorneys for Machiavelli will speak first. Attorneys for respondent Augustine will speak last.
Grading Expectations for Brief and Opinion Writing:
Each justice will write his/her own opinion, but should indicate if it is a majority opinion or dissent. After OA is complete, the Chief Justice should take a vote so other justices know which type of opinion they are writing. The Chief should report this information to me, noting who voted which way, who will dissent, etc.
Attorneys should indicate which client they are representing. Attorneys may, if they wish, coordinate and divide up issues according to their time periods of oral argument, but each attorney should write his/her own brief which covers all of the issues.
Issues are stated in the form of a question. They should incorporate the actions (facts) in question and relevant statutes or constitutional clauses. There may be more than one issue in a case. Holdings (or for attorneys, your advocated holdings) are similar, but are presented in the form of statement.
You should use legal reasoning to support your arguments and respond to the arguments of your opponents. Legal reasoning is a complex and nuanced endeavor that typically involves four key components. The first is to identify relevant legal rules and offer your interpretation. These rules include clauses of the Constitution, statutes, and precedents. Interpretation may introduce questions regarding the text of the relevant constitutional clause or statute, original intent, and stare decisis (whether to follow precedent), as well as others. You will want to indicate why your interpretations are better than the ones offered by your opponents.
The second component of legal reasoning is intertwined with the first. It requires you to apply the rules to the facts. Here, you must decide which precedents are most relevant to the case, as well as whether (and how) the Constitution and statutes apply to the case. You will want to distinguish precedents which your opponents wish to apply by showing that other precedents are better or by indicating that your opponents’ precedents are not similar to the present case. Attorneys will want to present the facts and how they fit with the precedents to the advantage of their client, but should not lie or be inaccurate.
The third component involves your analysis of policy implications. What will be the policy effects of your (advocated) holding, if adopted? How will your (advocated) holding affect future cases? Analyze the policy implications of your opponents.
Finally, you will want to include relevant normative arguments, including morality, justice, liberty, democracy, and the rule of law.
1. Address the issues directly. Do not include information that is not directly relevant to the question.
2. Organize your paper.
3. Consider the best arguments that could be used against you, and respond to them.
4. Incorporate relevant information from lecture and readings, including brief direct quotes from the texts when useful.
5. Write with correct grammar, usage and spelling.
6. Write with clarity and concision. Although "legalese" can be confusing, well-written briefs and opinions clarify rather than muddle.
Citations: All GVSU policies and codes regarding academic honesty and plagiarism apply. You should cite any language or key ideas taken from sources such as legal opinions, texts or articles. Cite the name of the author, year, and page number. Case citations should include the name of the case, volume, reporter name, first page number of case, page from which the material was taken, and year, (e.g. Smith v. Jones, 100 U.S. 123, 144, 1999). If you cite it again, you can just use the name and key page number (e.g. Smith, 146). If you cite a case from the O'Brien casebook, use the name of the case, volume, reporter name, first page number of case, and year (and cite O'Brien and the page in O'Brien the first time you use it – e.g. Smith v. Jones, 100 U.S. 123, 1999, as cited in O'Brien, 1132; the second time, use the case name and page from O'Brien – e.g. Smith, 1132).
As a general rule, your main citation should be to the source you are reading. Be sure to cite a lower court opinion when you use it, even when you read a lower court opinion that is citing the Supreme Court. Example 1: If you have a direct quote from a lower court opinion that contains other citations (known as internal citations), you should include the internal citations and cite the lower court. Example 2: If you use an idea from an opinion called McDonaugh v. State that you read about in an opinion called Hogwallop v. U.S., you should use Hogwallop v. U.S. as your main citation, but mention McDonaugh v. State. Your sentence might look like this: McDonaugh v. State (98 U.S. 333, 335, 2001) established strict scrutiny as the standard of review (Hogwallop v. U.S., 100 U.S. 123, 144, 2002). Alternatively, you could phrase it like this: Hogwallop v. U.S. (100 U.S. 123, 144, 2002), citing McDonaugh v. State (98 U.S. 333, 335, 2001), noted that the standard of review is strict scrutiny.
Legal Research using Westlaw and Findlaw
Westlaw is a better source than Findlaw for state, federal district and federal circuit court opinions. Findlaw is accessible from home and has every U.S. Supreme Court opinion from 1893--yes, 1893, not 1993. You can also use Lexis if you prefer.
Westlaw: Westlaw is accessible from home.
1. Start at the GVSU homepage: www.gvsu.edu
2. Select "Library."
3. Scroll down to and click "Databases."
4. Click on "W."
5. Click on "WestLaw Campus."
6. Read the access agreement. If you consent, click "Go."
7. Click on the Law tab. Refer to the citation of the case you are retrieving. In the box titled: "Find a Document by citation" (located in the top left corner) enter the citation, including volume, reporter (or law review) name, and page number, e.g. 222 F. 3d 719. Now click "Go."
8. If everything went right, you should only have one search result. Check to see that the citation and date are correct. If so, then save and/or print.
9. Note: When you use Westlaw it will provide multiple West keynotes at the top of the article. Just ignore those as they are not officially part of the opinion and are primarily designed for lawyers doing more in-depth research.
Findlaw: Findlaw is accessible from home and has every U.S. Supreme Court opinion from 1893--yes, 1893, not 1993.
1. Navigate to www.findlaw.com
2. Click on "US Sup Ct" (under Laws: Cases and Codes).
3. If you have the U.S. Reports number of the case (e.g. 100 U.S. 201), enter these numbers in the citation search box and click "get it."
For recent decisions, you may need to use the browsing by year function. For example, to get Bush v. Gore, 2000, click on "by year," then click on "2000," and then click on "Bush v. Gore." You can also use the party name search function.
Friday, May 15, 2009
Saturday, May 2, 2009
Office Hours and Contact Information Spring 2009
Office Hours and Contact Information for Dr. Mark J. Richards
1106 AuSable Hall
richardm@gvsu.edu
Spring 2009 semester (through 6/15/09):
I will have office hours in 410 Eberhard Center on M/W 5-6 p.m.
Office hours may also be made by appointment (richardm@gvsu.edu).
1106 AuSable Hall
richardm@gvsu.edu
Spring 2009 semester (through 6/15/09):
I will have office hours in 410 Eberhard Center on M/W 5-6 p.m.
Office hours may also be made by appointment (richardm@gvsu.edu).
Oral Argument Preview: Safford Unified School District #1 v. Redding
Oral Argument preview Safford Unified School District #1 v. Redding (08-479)
Westlaw:
Redding v. Safford Unified School District #1, 531 F.3d 1071, July 11, 2008 (U.S. Court of Appeals, Ninth Circuit).
New Jersey v. T.L.O., 469 U.S. 325, 1985
Dates: Oral argument simulation W 5/13, papers due W 5/20
I. Facts – see pp. 1074-1078 (section I of majority opinion). You should be familiar with the following questions:
Why did the school officials search Savanna?
How did they do so?
What did they find?
What other students did they search, and how did they do so?
Were their other events at the school that caused the school officials to be suspicious or wary of the issue of drugs at the school?
II. Issue
***Please note: For the purposes of our classroom exercise and paper, we *will not* focus on the qualified immunity issue (part IIB of majority opinion). We *will* focus on the constitutionality of the search (see especially section IIA of majority opinion).
Does the strip search of Savana Redding constitute an unreasonable search in violation of the fourth amendment?
Note: Fourth amendment applies to states through incorporation principles under the fourteenth amendment.
III. Holding
A. Ninth Circuit
The strip search of Savana Redding was an unreasonable search in violation of the fourth amendment.
B. For your papers:
Justices in majority write a holding.
Dissenting justices note they are dissenting and explain how they would hold in the case.
Attorneys write an advocated holding: E.g. As counsel for ____, we ask the Court to hold that . . .
IV. Reasoning (Wardlaw, joined by five others)
A. Relevant text of 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."
B. Precedent –New Jersey v. T.L.O., 469 U.S. 325, 1985
1. Recognizes that students have rights to be free from unreasonable searches
2. Searches must be reasonable. Reasonableness requires balancing:
Student rights of privacy and personal security
Schools' interests in maintaining discipline and order.
Reasonableness is a lower standard than probable cause.
3. Two part test for reasonableness:
a. Was the search justified at inception?
b. Was the scope of the search reasonably related to the circumstances that lead to the initial justification for the search?
Student privacy should not be invaded more than is necessary to maintain order.
C. Search was a strip search
Strip search does not require full disrobing.
Savana was required to expose "the parts of her body underneath her underwear" (Redding 1080-81).
Even if dissent wants to quibble on the terms, the search was still unreasonable.
D. The search was not reasonable at its inception –
1. Precedent: Was the search justified at inception?
2. Comparison to TLO. Unlike the initial search of the purse in TLO that turned up cigarettes and rolling papers and justified a second, more intrusive search of the purse, the initial search of Savana's backpack did not justify an additional strip search.
3. Informant was not reliable.
Reliability of an informant is judged according to the totality of the circumstances, taking into account how the informant knew what she knew (the basis of knowledge), and the veracity or reliability of the informant
Marissa's statement was an attempt to deflect blame.
4. Savana had no prior connection to the contraband (unlike T.L.O., who had been caught smoking in the bathroom by a teacher) and no history of discipline problems.
5. There was no corroborating evidence to support Marissa's tip.
6. Conclusion – It was not reasonable for school officials to believe that Savana had pills on her person.
E. The search was not reasonable in scope
1. Precedent: Was the scope of the search reasonably related to the circumstances that lead to the initial justification for the search?
"The scope of a search is permissible only if 'the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.' " (Safford Unified School District v. Redding, 531 F.3d 1071, 1085, 2008, quoting New Jersey v. T.L.O, 469 U.S. 325, 342, 1985)
2. The strip search was excessively intrusive, considering the drug in question was ibuprofen, the fact that no evidence pointed to Savana keeping it in her underwear, and the fact that less intrusive alternatives existed to prevent her from distributing the pills. Officials could have called a parent or sent her home.
Savana, a girl, was subject to a strip search, but Christopher, a male, was not.
Strip searches are embarrassing and humiliating, even more so for adolescents who have entered puberty. See clinical and psychological evidence.
3. Conclusion – scope was not reasonable.
V. Gould and Silverman – agree with majority on fourth amendment issue, but dissent on qualified immunity (argue that right was not clearly established)
VI. Hawkins, Kozinski and Bea, dissenting
A. remember – text of fourth amendment
B. precedent –
1. Dissenting judges agree that precedent is TLO
2. Supreme Court permitted mandatory urinalysis drug tests for student athletes, conducted under teacher supervision, in Vernonia School District 47J v. Acton, 515 US 646, 1995, as well as the same for all students participating in extracurricular activities in Board of Education of Independent School District v. Earls, 536 US 822, 2002.
C. The search was not a strip search, as Savana was not required to be fully disrobed.
D. Search was reasonable at inception.
1. Precedent of TLO – difference in two searches in TLO is not level of intrusiveness, but two different infractions. Discovering rolling papers in first search lead to second search for marijuana.
Standard is reasonable suspicion – not probable cause.
2. Specific evidence for reasonableness
Teacher smelled alcohol in Savana's small group at a school dance.
Student Jordan and his mother provided evidence to the school principle that Savana had hosted a party and served alcohol before the dance.
(Majority responds: This allegation is disputed.
Dissent: It doesn't matter, because the administration didn't know that at the time.)
Jordan had ingested pills and become violent and sick to his stomach.
On the day in question, Jordan handed a pill (ibuprofen) to assistant principal Wilson that he said he had received from Marissa.
When Marissa was called out of class, her teacher found a planner containing knives, lighters and a cigarette. Savana admitted that she had loaned Marissa the planner.
(Majority responds: The planner has nothing to do with the ibuprofen.
Dissent: It is circumstantial corroboration.)
Upon finding ibuprofen and naprosyn (Aleve), Marissa identified Savana as the supplier. The statement is not self-serving.
3. Conclusion: All of this evidence points to the reasonableness of the search at its inception.
E. Scope of search was reasonable
1. Agrees on precedent but weighs the factors differently than the majority in applying the TLO standard. Dissent would apply a new three-step inquiry in looking at whether the scope was reasonable:
a. Measures of search must be reasonably related to the objectives of the search
b. Examine intrusiveness of the search in light of attributes of student (e.g. age, sex, extracurricular activities, mental disability, etc.)
c. Nature of the infraction – TLO is ambiguous on this point. Should courts defer to judgment of school officials, or weigh how important the infraction is to maintaining school discipline? Risk of harm to students merits greater deference to school officials.
2. Application of three-step standard
a. Measures of the search were reasonably related to the objective of finding ibuprofen.
b. Dissent does not disagree that the search was intrusive for a thirteen-year-old girl, but question should be whether it was excessively intrusive, in relation to part c.
c. The court should defer to the school officials on the nature of the infraction. Even mild drugs like ibuprofen can be harmful to children. School officials acted rationally, based on information that the students would be taking pills that day.
Holding Savana for the afternoon would have only delayed the risk of the problem happening again.
VII. Policy implications
1. Should courts be second-guessing school officials because of uncorroborated tips or because the drug was only ibuprofen?
2. Limiting student freedoms –
Is this search any more limiting that the drug testing cases?
3. Effects on education
4. War on drugs
VIII. Normative implications
Security v. liberty
Development of students
Westlaw:
Redding v. Safford Unified School District #1, 531 F.3d 1071, July 11, 2008 (U.S. Court of Appeals, Ninth Circuit).
New Jersey v. T.L.O., 469 U.S. 325, 1985
Dates: Oral argument simulation W 5/13, papers due W 5/20
I. Facts – see pp. 1074-1078 (section I of majority opinion). You should be familiar with the following questions:
Why did the school officials search Savanna?
How did they do so?
What did they find?
What other students did they search, and how did they do so?
Were their other events at the school that caused the school officials to be suspicious or wary of the issue of drugs at the school?
II. Issue
***Please note: For the purposes of our classroom exercise and paper, we *will not* focus on the qualified immunity issue (part IIB of majority opinion). We *will* focus on the constitutionality of the search (see especially section IIA of majority opinion).
Does the strip search of Savana Redding constitute an unreasonable search in violation of the fourth amendment?
Note: Fourth amendment applies to states through incorporation principles under the fourteenth amendment.
III. Holding
A. Ninth Circuit
The strip search of Savana Redding was an unreasonable search in violation of the fourth amendment.
B. For your papers:
Justices in majority write a holding.
Dissenting justices note they are dissenting and explain how they would hold in the case.
Attorneys write an advocated holding: E.g. As counsel for ____, we ask the Court to hold that . . .
IV. Reasoning (Wardlaw, joined by five others)
A. Relevant text of 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."
B. Precedent –New Jersey v. T.L.O., 469 U.S. 325, 1985
1. Recognizes that students have rights to be free from unreasonable searches
2. Searches must be reasonable. Reasonableness requires balancing:
Student rights of privacy and personal security
Schools' interests in maintaining discipline and order.
Reasonableness is a lower standard than probable cause.
3. Two part test for reasonableness:
a. Was the search justified at inception?
b. Was the scope of the search reasonably related to the circumstances that lead to the initial justification for the search?
Student privacy should not be invaded more than is necessary to maintain order.
C. Search was a strip search
Strip search does not require full disrobing.
Savana was required to expose "the parts of her body underneath her underwear" (Redding 1080-81).
Even if dissent wants to quibble on the terms, the search was still unreasonable.
D. The search was not reasonable at its inception –
1. Precedent: Was the search justified at inception?
2. Comparison to TLO. Unlike the initial search of the purse in TLO that turned up cigarettes and rolling papers and justified a second, more intrusive search of the purse, the initial search of Savana's backpack did not justify an additional strip search.
3. Informant was not reliable.
Reliability of an informant is judged according to the totality of the circumstances, taking into account how the informant knew what she knew (the basis of knowledge), and the veracity or reliability of the informant
Marissa's statement was an attempt to deflect blame.
4. Savana had no prior connection to the contraband (unlike T.L.O., who had been caught smoking in the bathroom by a teacher) and no history of discipline problems.
5. There was no corroborating evidence to support Marissa's tip.
6. Conclusion – It was not reasonable for school officials to believe that Savana had pills on her person.
E. The search was not reasonable in scope
1. Precedent: Was the scope of the search reasonably related to the circumstances that lead to the initial justification for the search?
"The scope of a search is permissible only if 'the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.' " (Safford Unified School District v. Redding, 531 F.3d 1071, 1085, 2008, quoting New Jersey v. T.L.O, 469 U.S. 325, 342, 1985)
2. The strip search was excessively intrusive, considering the drug in question was ibuprofen, the fact that no evidence pointed to Savana keeping it in her underwear, and the fact that less intrusive alternatives existed to prevent her from distributing the pills. Officials could have called a parent or sent her home.
Savana, a girl, was subject to a strip search, but Christopher, a male, was not.
Strip searches are embarrassing and humiliating, even more so for adolescents who have entered puberty. See clinical and psychological evidence.
3. Conclusion – scope was not reasonable.
V. Gould and Silverman – agree with majority on fourth amendment issue, but dissent on qualified immunity (argue that right was not clearly established)
VI. Hawkins, Kozinski and Bea, dissenting
A. remember – text of fourth amendment
B. precedent –
1. Dissenting judges agree that precedent is TLO
2. Supreme Court permitted mandatory urinalysis drug tests for student athletes, conducted under teacher supervision, in Vernonia School District 47J v. Acton, 515 US 646, 1995, as well as the same for all students participating in extracurricular activities in Board of Education of Independent School District v. Earls, 536 US 822, 2002.
C. The search was not a strip search, as Savana was not required to be fully disrobed.
D. Search was reasonable at inception.
1. Precedent of TLO – difference in two searches in TLO is not level of intrusiveness, but two different infractions. Discovering rolling papers in first search lead to second search for marijuana.
Standard is reasonable suspicion – not probable cause.
2. Specific evidence for reasonableness
Teacher smelled alcohol in Savana's small group at a school dance.
Student Jordan and his mother provided evidence to the school principle that Savana had hosted a party and served alcohol before the dance.
(Majority responds: This allegation is disputed.
Dissent: It doesn't matter, because the administration didn't know that at the time.)
Jordan had ingested pills and become violent and sick to his stomach.
On the day in question, Jordan handed a pill (ibuprofen) to assistant principal Wilson that he said he had received from Marissa.
When Marissa was called out of class, her teacher found a planner containing knives, lighters and a cigarette. Savana admitted that she had loaned Marissa the planner.
(Majority responds: The planner has nothing to do with the ibuprofen.
Dissent: It is circumstantial corroboration.)
Upon finding ibuprofen and naprosyn (Aleve), Marissa identified Savana as the supplier. The statement is not self-serving.
3. Conclusion: All of this evidence points to the reasonableness of the search at its inception.
E. Scope of search was reasonable
1. Agrees on precedent but weighs the factors differently than the majority in applying the TLO standard. Dissent would apply a new three-step inquiry in looking at whether the scope was reasonable:
a. Measures of search must be reasonably related to the objectives of the search
b. Examine intrusiveness of the search in light of attributes of student (e.g. age, sex, extracurricular activities, mental disability, etc.)
c. Nature of the infraction – TLO is ambiguous on this point. Should courts defer to judgment of school officials, or weigh how important the infraction is to maintaining school discipline? Risk of harm to students merits greater deference to school officials.
2. Application of three-step standard
a. Measures of the search were reasonably related to the objective of finding ibuprofen.
b. Dissent does not disagree that the search was intrusive for a thirteen-year-old girl, but question should be whether it was excessively intrusive, in relation to part c.
c. The court should defer to the school officials on the nature of the infraction. Even mild drugs like ibuprofen can be harmful to children. School officials acted rationally, based on information that the students would be taking pills that day.
Holding Savana for the afternoon would have only delayed the risk of the problem happening again.
VII. Policy implications
1. Should courts be second-guessing school officials because of uncorroborated tips or because the drug was only ibuprofen?
2. Limiting student freedoms –
Is this search any more limiting that the drug testing cases?
3. Effects on education
4. War on drugs
VIII. Normative implications
Security v. liberty
Development of students
Reading List by Date Spring 2009
COURSE OUTLINE AND READING LIST:
M 5/4
Introduction
U.S. Constitution and Amendments
Begin reading Tushnet, The NAACP's Legal Strategy against Segregated Education, entire.
I. Legal Reasoning and Constitutional InterpretationO'Brien, pp. 125-26.
II. Race, the Death Penalty, and the Eighth Amendment
W 5/6
continue section II.
O'Brien, pp. 1168-71
McCleskey v. Kemp (1987)
Roper v. Simmons (2005)
III. Theories of Constitutional Interpretation: Originalism, the Moral Reading, and Other Approaches Antonin Scalia. A Matter of Interpretation. Read Scalia’s portion, the critics’ (Gordon Wood, Laurence Tribe, and Ronald Dworkin) commentaries on Scalia, and Scalia’s responses to the critics.
*Introduce oral argument exercise
M 5/11
IV. The Fourth Amendment Guarantee Against Unreasonable Searches and Seizures
O'Brien pp. 870-78, 914-15
Minnesota v. Dickerson (1993)
United States v. Leon and Massachusetts v. Sheppard (1984)
V. Oral Argument preview: Safford Unified School District #1 v. Redding (08-479)Westlaw:Redding v. Safford Unified School District #1, 531 F.3d 1071, July 11, 2008 (U.S. Court of Appeals, Ninth Circuit).
New Jersey v. T.L.O., 469 U.S. 325, 1985.
W 5/13
Continue section V.
Oral Arguments – mandatory attendance
The Fifth Amendment Guarantee Against Self-accusation
O'Brien, pp. 1028-45
Miranda v. Arizona (1966)
Arizona v. Fulminante (1991)
Dickerson v. U.S. (2000)
M 5/18
VI. First Amendment: Freedom of Expression Fundamental Principles
Texas v. Johnson (1989)
Cohen v. California (1971)
First Amendment: Pornography and Obscenity
O’Brien, pp. 453-460
Miller v. California (1973)
Paris Adult Theatre I v. Slaton (1973)
Reno v. ACLU (1997)
W 5/20
ORAL ARGUMENT PAPER DUE
*Introduce paper assignment
First Amendment: Advocacy of Illegal ActionO’Brien, pp. 420-447
M 5/25 MEMORIAL DAY
*NO CLASS*
W 5/27
VII. First Amendment: Religious Liberties
Establishment Clause
O’Brien, pp. 718-728
Lemon v. Kurtzman (1971)
Zobrest v. Catalina Foothills School District (1993)
Zelman v. Simmons-Harris (2002)
Free Exercise Clause
O’Brien, pp. 819-825
Employment Division, Department of Human Resources of Oregon v. Smith (1990)
Church of the Lukumi Babalu Aye v. City of Hialeah (1993)
M 6/1
VIII. Substantive Due Process: Privacy, Autonomy and Reproductive Freedom (Fifth and Fourteenth Amendments)
Abortion
O'Brien, pp. 1236-46
Roe v. Wade (1973)
Planned Parenthood of Southeastern Pennsylvania v. Casey (1992)
Post-Roe rulings on Abortion, pp. 1266-69
Privacy and Autonomy
O'Brien, pp. 1232-35
Bowers v. Hardwick (1986)
Lawrence v. TX (2003)
W 6/3
IX. Equality: Race, Gender and the Fourteenth Amendment Equal Protection Clause
Introduction
O'Brien, pp. 1334-43
Racial Discrimination and State Action
O'Brien, pp. 1344-51
The Civil Rights Cases (1883)
Shelley v. Kraemer (1948)
M 6/8
School Desegregation
O'Brien, pp. 1388-1400
Brown v. Board of Education of Topeka, Kansas I (1954)
Brown v. Board of Education of Topeka, Kansas I (1955)
Parents Involved in Community Schools v. Seattle School District #1 (2007)
Affirmative Action
O'Brien, pp. 1456-63
City of Richmond v. J.A. Croson (1989)
Adarand Constructors, Inc. v. Pena (1995)
Gratz v. Bollinger (2003)
Grutter v. Bollinger (2003)
W 6/10
Discuss Tushnet, The NAACP's Legal Strategy against Segregated Education
Equal Protection and Gender EqualityO’Brien, pp. 1514-16
United States v. Virginia (1996)
Craig v. Boren (1976)
Exam Review
M 6/15
TERM PAPER DUE
XII. Second Amendment
Westlaw: District of Columbia v. Heller, 128 S.Ct. 2783, 2008.
PRESENTATIONS
W 6/17 FINAL EXAM DUE
M 5/4
Introduction
U.S. Constitution and Amendments
Begin reading Tushnet, The NAACP's Legal Strategy against Segregated Education, entire.
I. Legal Reasoning and Constitutional InterpretationO'Brien, pp. 125-26.
II. Race, the Death Penalty, and the Eighth Amendment
W 5/6
continue section II.
O'Brien, pp. 1168-71
McCleskey v. Kemp (1987)
Roper v. Simmons (2005)
III. Theories of Constitutional Interpretation: Originalism, the Moral Reading, and Other Approaches Antonin Scalia. A Matter of Interpretation. Read Scalia’s portion, the critics’ (Gordon Wood, Laurence Tribe, and Ronald Dworkin) commentaries on Scalia, and Scalia’s responses to the critics.
*Introduce oral argument exercise
M 5/11
IV. The Fourth Amendment Guarantee Against Unreasonable Searches and Seizures
O'Brien pp. 870-78, 914-15
Minnesota v. Dickerson (1993)
United States v. Leon and Massachusetts v. Sheppard (1984)
V. Oral Argument preview: Safford Unified School District #1 v. Redding (08-479)Westlaw:Redding v. Safford Unified School District #1, 531 F.3d 1071, July 11, 2008 (U.S. Court of Appeals, Ninth Circuit).
New Jersey v. T.L.O., 469 U.S. 325, 1985.
W 5/13
Continue section V.
Oral Arguments – mandatory attendance
The Fifth Amendment Guarantee Against Self-accusation
O'Brien, pp. 1028-45
Miranda v. Arizona (1966)
Arizona v. Fulminante (1991)
Dickerson v. U.S. (2000)
M 5/18
VI. First Amendment: Freedom of Expression Fundamental Principles
Texas v. Johnson (1989)
Cohen v. California (1971)
First Amendment: Pornography and Obscenity
O’Brien, pp. 453-460
Miller v. California (1973)
Paris Adult Theatre I v. Slaton (1973)
Reno v. ACLU (1997)
W 5/20
ORAL ARGUMENT PAPER DUE
*Introduce paper assignment
First Amendment: Advocacy of Illegal ActionO’Brien, pp. 420-447
M 5/25 MEMORIAL DAY
*NO CLASS*
W 5/27
VII. First Amendment: Religious Liberties
Establishment Clause
O’Brien, pp. 718-728
Lemon v. Kurtzman (1971)
Zobrest v. Catalina Foothills School District (1993)
Zelman v. Simmons-Harris (2002)
Free Exercise Clause
O’Brien, pp. 819-825
Employment Division, Department of Human Resources of Oregon v. Smith (1990)
Church of the Lukumi Babalu Aye v. City of Hialeah (1993)
M 6/1
VIII. Substantive Due Process: Privacy, Autonomy and Reproductive Freedom (Fifth and Fourteenth Amendments)
Abortion
O'Brien, pp. 1236-46
Roe v. Wade (1973)
Planned Parenthood of Southeastern Pennsylvania v. Casey (1992)
Post-Roe rulings on Abortion, pp. 1266-69
Privacy and Autonomy
O'Brien, pp. 1232-35
Bowers v. Hardwick (1986)
Lawrence v. TX (2003)
W 6/3
IX. Equality: Race, Gender and the Fourteenth Amendment Equal Protection Clause
Introduction
O'Brien, pp. 1334-43
Racial Discrimination and State Action
O'Brien, pp. 1344-51
The Civil Rights Cases (1883)
Shelley v. Kraemer (1948)
M 6/8
School Desegregation
O'Brien, pp. 1388-1400
Brown v. Board of Education of Topeka, Kansas I (1954)
Brown v. Board of Education of Topeka, Kansas I (1955)
Parents Involved in Community Schools v. Seattle School District #1 (2007)
Affirmative Action
O'Brien, pp. 1456-63
City of Richmond v. J.A. Croson (1989)
Adarand Constructors, Inc. v. Pena (1995)
Gratz v. Bollinger (2003)
Grutter v. Bollinger (2003)
W 6/10
Discuss Tushnet, The NAACP's Legal Strategy against Segregated Education
Equal Protection and Gender EqualityO’Brien, pp. 1514-16
United States v. Virginia (1996)
Craig v. Boren (1976)
Exam Review
M 6/15
TERM PAPER DUE
XII. Second Amendment
Westlaw: District of Columbia v. Heller, 128 S.Ct. 2783, 2008.
PRESENTATIONS
W 6/17 FINAL EXAM DUE
Research Paper Spring 2009
PLS 307 Writing Assignment and Presentation
Summer 2009
Dr. Mark J. Richards
You have been issued a special invitation to participate in a conference from 4/7 to 6/15. Your paper is due in class on Monday, 6/15. The theme of the conference is “From Rehnquist to Roberts: Freedom of Expression in the New Millennium.” The conference will examine the major free expression decisions of the Rehnquist and Roberts Courts.
Grading (assignment counts for 30% of your PLS 307 grade)
95% of your grade on this assignment will be based on your paper
5% of your grade on this assignment will be based on your oral presentation for the conference panel
In grading your final paper, the main criteria I will take into account will be:
How well did the paper demonstrate thorough preparation and research?
How well written was the paper in terms of style, organization, and mechanics?
Did the paper take into account major counterarguments and respond to them?
Oral Presentation for conference panel
Prepare a 5 minute presentation based on your research. The presentation should highlight your main findings. You will be graded based on length and quality of presentation. Do not just read from your paper. You should prepare a presentation of appropriate length and practice it to make sure that you are within the time limit. Cutting and pasting portions of your paper and adapting this material to the panel format is encouraged. You can use PowerPoint, but it is not required. I will group the panels according to topic. I will serve as the discussant for the panel, and offer feedback on each paper. You will be encouraged to offer questions and comments on your peers’ presentations.
Page limit and Format
6 double-spaced pages minimum (to avoid an F). 10 double-spaced pages maximum.
Use page numbers.
Your research should be written in American Political Science Association (APSA) format, unless indicated otherwise here (see section on case citation below). Information on APSA format for citations, references can be found at:
http://www.wisc.edu/writing/Handbook/DocAPSA.html
Citations: All GVSU policies and codes regarding academic honesty and plagiarism apply. You should cite any language or key ideas taken from sources such as legal opinions, texts or articles. Cite the name of the author, year, and page number. Case citations should include the name of the case, volume, reporter name, first page number of case, page from which the material was taken, and year, (e.g. Smith v. Jones, 100 U.S. 123, 144, 1999). If you cite it again, you can just use the name and key page number (e.g. Smith, 146). If you cite a case from the O'Brien casebook, use the name of the case, volume, reporter name, first page number of case, and year (and cite O'Brien and the page in O'Brien the first time you use it – e.g. Smith v. Jones, 100 U.S. 123, 1999, as cited in O'Brien, 1132; the second time, use the case name and page from O'Brien – e.g. Smith, 1132).
As a general rule, your main citation should be to the source you are reading. Be sure to cite a lower court opinion when you use it, even when you read a lower court opinion that is citing the Supreme Court. Example 1: If you have a direct quote from a lower court opinion that contains other citations (known as internal citations), you should include the internal citations and cite the lower court. Example 2: If you use an idea from an opinion called McDonaugh v. State that you read about in an opinion called Hogwallop v. U.S., you should use Hogwallop v. U.S. as your main citation, but mention McDonaugh v. State. Your sentence might look like this: McDonaugh v. State (98 U.S. 333, 335, 2001) established strict scrutiny as the standard of review (Hogwallop v. U.S., 100 U.S. 123, 144, 2002). Alternatively, you could phrase it like this: Hogwallop v. U.S. (100 U.S. 123, 144, 2002), citing McDonaugh v. State (98 U.S. 333, 335, 2001), noted that the standard of review is strict scrutiny.
Citing briefs. Use Petitioner's Brief, Respondent's Brief, or Amicus Brief of (Group Y), and page number (indicated by * in Westlaw).
Choosing a case
Everyone will analyze one of the major cases decided during the 2000-2007 terms (the years 2001-2008), based on the attached tables. I will pass around a sign-up sheet in class so you can pick your case. Everyone will do a different case.
Finding your case
Westlaw Directions:
1. Start at the GVSU homepage: www.gvsu.edu
2. Select "Library."
3. Scroll down to and click "Databases A-Z."
4. Click on "W."
5. Click on "WestLaw Campus." May next require logon if at home.
6. Read the access agreement. If you consent, click "Go."
7. Click on the Law tab. Refer to the citation of the case you are retrieving. In the box titled: "Find a Document by citation" (located in the top left corner) enter the citation, including volume, reporter (or law review) name, and page number, e.g. 222 S. Ct. 719. Now click "Go."
8. If everything went right, you should only have one search result. Check to see that the citation and date are correct. If so, then save and/or print - be careful, these can be very long documents. You may want to copy and paste the file to MS Word.
9. Note: When you use Westlaw it will provide multiple West keynotes at the top of the cases. These are not officially part of the opinion.
Writing
Essentially you are analyzing one case in great depth. Your required research is to read and analyze your case and related briefs. You can refer to key precedents. I do not want law review commentary or any other sources. In analyzing your case, here are some of the questions you should consider:
What are the main free expression issues in the case? If there are other issues beyond freedom of expression, you should mention them briefly, but do not spend any more time on them. I encourage you to check with me to make sure you have the issues correct. There may be more than one issue.
How did the justices vote on the free expression issues? Make a table something like this:
Justice, Appointing President as indicator of attitudes, Issue 1 (briefly describe), Issue 2
Rehnquist (RN, RR) Anti-speech Anti-speech
Stevens (GF) Pro-speech Anti-speech
O’Connor (RR) Anti-speech Anti-speech
Scalia (RR) Pro-speech Anti-speech
Kennedy (RR) Anti-speech Anti-speech
Souter (GB) Pro-speech Anti-speech
Thomas (GB) Anti-speech Anti-speech
Ginsburg (WC) Pro-speech Pro-speech
Breyer (WC) Pro-speech Pro-speech
Roberts (GWB) If necessary
Alito (GWB) If necessary
Pro-speech votes are those in favor of the speaker. Anti-speech votes are those in favor of the government or against the speaker. Be sure to get the voting alignments correct per issue. Please note in the text which justices wrote an opinion and which justices joined each opinion.
Did the majority opinion apply a standard of review? (If there is not a majority, use the plurality opinion.) If so, what standard did they apply? Why? Did the concurring or dissenting justices apply a different standard? Why? How did the standard apply, and was there disagreement? (E.g. If the justices applied strict scrutiny, explain whether they found a compelling government interest and whether they found the government used the least restrictive means to achieve that interest.) If there is not a dissenting opinion, use the view of the party that lost instead.
What are the main precedents used by the majority? Did the dissenting justices apply the same precedents or different ones? How did the precedents apply? Was there disagreement over how the precedents applied? (Note on citation: Be sure to attribute sources correctly. If you are quoting the precedent as you read it from your case, be sure to cite both sources, otherwise it gives the false impression that you read the precedent directly.)
Did the politics of the justices matter in their decision making? (Refer back to table.)
Analysis of Briefs: In Westlaw, after you have found the case and opened it, at the top of the page, immediate after the citations, click on the link “Briefs and Other Related Documents.” Read the petitioner’s brief and the respondent’s brief. The petitioner is the party listed first in the Supreme Court opinion and is the party challenging the ruling of the highest court that took the case prior to it coming to the Supreme Court. There may also be a number of briefs labeled “amicus curiae,” which means friend of the court. Count how many are in favor of petitioner and respondent, and note that in your paper; if there are none, note that instead. Also note whether there was an amicus brief filed by the United States, and which side the U.S. supported. If the U.S. is a party to the case the U.S. brief would be either a petitioner or respondent brief. Read one amicus curiae brief, if available, and note which one you read in your paper. In your analysis of the petitioner, respondent and amicus curiae briefs, discuss the following: Did you find any legal, policy, or normative arguments in any of the briefs that were not addressed by the Court’s opinion(s)? In your view, which side wrote a better brief, and why? For the amicus brief, why do you think this group filed the brief? E.g., did the group filing the brief make any normative or policy arguments that seemed to reflect the perspective of the group? Did you find these arguments persuasive and did they matter to the Court?
Did the Supreme Court majority make the right decision, in your view? In answering this, think about the relevance of law, precedent, politics, normative values, and policy. By policy I mean the effect it will have on future cases and on how policy is made or how people behave. As you answer this, be sure to explain the best arguments of the opposing side, and why you think they are wrong.
What issues did the justices leave unresolved, if any? What additional issues are likely to arise in the future as a result of the Court’s decision?
Summer 2009
Dr. Mark J. Richards
You have been issued a special invitation to participate in a conference from 4/7 to 6/15. Your paper is due in class on Monday, 6/15. The theme of the conference is “From Rehnquist to Roberts: Freedom of Expression in the New Millennium.” The conference will examine the major free expression decisions of the Rehnquist and Roberts Courts.
Grading (assignment counts for 30% of your PLS 307 grade)
95% of your grade on this assignment will be based on your paper
5% of your grade on this assignment will be based on your oral presentation for the conference panel
In grading your final paper, the main criteria I will take into account will be:
How well did the paper demonstrate thorough preparation and research?
How well written was the paper in terms of style, organization, and mechanics?
Did the paper take into account major counterarguments and respond to them?
Oral Presentation for conference panel
Prepare a 5 minute presentation based on your research. The presentation should highlight your main findings. You will be graded based on length and quality of presentation. Do not just read from your paper. You should prepare a presentation of appropriate length and practice it to make sure that you are within the time limit. Cutting and pasting portions of your paper and adapting this material to the panel format is encouraged. You can use PowerPoint, but it is not required. I will group the panels according to topic. I will serve as the discussant for the panel, and offer feedback on each paper. You will be encouraged to offer questions and comments on your peers’ presentations.
Page limit and Format
6 double-spaced pages minimum (to avoid an F). 10 double-spaced pages maximum.
Use page numbers.
Your research should be written in American Political Science Association (APSA) format, unless indicated otherwise here (see section on case citation below). Information on APSA format for citations, references can be found at:
http://www.wisc.edu/writing/Handbook/DocAPSA.html
Citations: All GVSU policies and codes regarding academic honesty and plagiarism apply. You should cite any language or key ideas taken from sources such as legal opinions, texts or articles. Cite the name of the author, year, and page number. Case citations should include the name of the case, volume, reporter name, first page number of case, page from which the material was taken, and year, (e.g. Smith v. Jones, 100 U.S. 123, 144, 1999). If you cite it again, you can just use the name and key page number (e.g. Smith, 146). If you cite a case from the O'Brien casebook, use the name of the case, volume, reporter name, first page number of case, and year (and cite O'Brien and the page in O'Brien the first time you use it – e.g. Smith v. Jones, 100 U.S. 123, 1999, as cited in O'Brien, 1132; the second time, use the case name and page from O'Brien – e.g. Smith, 1132).
As a general rule, your main citation should be to the source you are reading. Be sure to cite a lower court opinion when you use it, even when you read a lower court opinion that is citing the Supreme Court. Example 1: If you have a direct quote from a lower court opinion that contains other citations (known as internal citations), you should include the internal citations and cite the lower court. Example 2: If you use an idea from an opinion called McDonaugh v. State that you read about in an opinion called Hogwallop v. U.S., you should use Hogwallop v. U.S. as your main citation, but mention McDonaugh v. State. Your sentence might look like this: McDonaugh v. State (98 U.S. 333, 335, 2001) established strict scrutiny as the standard of review (Hogwallop v. U.S., 100 U.S. 123, 144, 2002). Alternatively, you could phrase it like this: Hogwallop v. U.S. (100 U.S. 123, 144, 2002), citing McDonaugh v. State (98 U.S. 333, 335, 2001), noted that the standard of review is strict scrutiny.
Citing briefs. Use Petitioner's Brief, Respondent's Brief, or Amicus Brief of (Group Y), and page number (indicated by * in Westlaw).
Choosing a case
Everyone will analyze one of the major cases decided during the 2000-2007 terms (the years 2001-2008), based on the attached tables. I will pass around a sign-up sheet in class so you can pick your case. Everyone will do a different case.
Finding your case
Westlaw Directions:
1. Start at the GVSU homepage: www.gvsu.edu
2. Select "Library."
3. Scroll down to and click "Databases A-Z."
4. Click on "W."
5. Click on "WestLaw Campus." May next require logon if at home.
6. Read the access agreement. If you consent, click "Go."
7. Click on the Law tab. Refer to the citation of the case you are retrieving. In the box titled: "Find a Document by citation" (located in the top left corner) enter the citation, including volume, reporter (or law review) name, and page number, e.g. 222 S. Ct. 719. Now click "Go."
8. If everything went right, you should only have one search result. Check to see that the citation and date are correct. If so, then save and/or print - be careful, these can be very long documents. You may want to copy and paste the file to MS Word.
9. Note: When you use Westlaw it will provide multiple West keynotes at the top of the cases. These are not officially part of the opinion.
Writing
Essentially you are analyzing one case in great depth. Your required research is to read and analyze your case and related briefs. You can refer to key precedents. I do not want law review commentary or any other sources. In analyzing your case, here are some of the questions you should consider:
What are the main free expression issues in the case? If there are other issues beyond freedom of expression, you should mention them briefly, but do not spend any more time on them. I encourage you to check with me to make sure you have the issues correct. There may be more than one issue.
How did the justices vote on the free expression issues? Make a table something like this:
Justice, Appointing President as indicator of attitudes, Issue 1 (briefly describe), Issue 2
Rehnquist (RN, RR) Anti-speech Anti-speech
Stevens (GF) Pro-speech Anti-speech
O’Connor (RR) Anti-speech Anti-speech
Scalia (RR) Pro-speech Anti-speech
Kennedy (RR) Anti-speech Anti-speech
Souter (GB) Pro-speech Anti-speech
Thomas (GB) Anti-speech Anti-speech
Ginsburg (WC) Pro-speech Pro-speech
Breyer (WC) Pro-speech Pro-speech
Roberts (GWB) If necessary
Alito (GWB) If necessary
Pro-speech votes are those in favor of the speaker. Anti-speech votes are those in favor of the government or against the speaker. Be sure to get the voting alignments correct per issue. Please note in the text which justices wrote an opinion and which justices joined each opinion.
Did the majority opinion apply a standard of review? (If there is not a majority, use the plurality opinion.) If so, what standard did they apply? Why? Did the concurring or dissenting justices apply a different standard? Why? How did the standard apply, and was there disagreement? (E.g. If the justices applied strict scrutiny, explain whether they found a compelling government interest and whether they found the government used the least restrictive means to achieve that interest.) If there is not a dissenting opinion, use the view of the party that lost instead.
What are the main precedents used by the majority? Did the dissenting justices apply the same precedents or different ones? How did the precedents apply? Was there disagreement over how the precedents applied? (Note on citation: Be sure to attribute sources correctly. If you are quoting the precedent as you read it from your case, be sure to cite both sources, otherwise it gives the false impression that you read the precedent directly.)
Did the politics of the justices matter in their decision making? (Refer back to table.)
Analysis of Briefs: In Westlaw, after you have found the case and opened it, at the top of the page, immediate after the citations, click on the link “Briefs and Other Related Documents.” Read the petitioner’s brief and the respondent’s brief. The petitioner is the party listed first in the Supreme Court opinion and is the party challenging the ruling of the highest court that took the case prior to it coming to the Supreme Court. There may also be a number of briefs labeled “amicus curiae,” which means friend of the court. Count how many are in favor of petitioner and respondent, and note that in your paper; if there are none, note that instead. Also note whether there was an amicus brief filed by the United States, and which side the U.S. supported. If the U.S. is a party to the case the U.S. brief would be either a petitioner or respondent brief. Read one amicus curiae brief, if available, and note which one you read in your paper. In your analysis of the petitioner, respondent and amicus curiae briefs, discuss the following: Did you find any legal, policy, or normative arguments in any of the briefs that were not addressed by the Court’s opinion(s)? In your view, which side wrote a better brief, and why? For the amicus brief, why do you think this group filed the brief? E.g., did the group filing the brief make any normative or policy arguments that seemed to reflect the perspective of the group? Did you find these arguments persuasive and did they matter to the Court?
Did the Supreme Court majority make the right decision, in your view? In answering this, think about the relevance of law, precedent, politics, normative values, and policy. By policy I mean the effect it will have on future cases and on how policy is made or how people behave. As you answer this, be sure to explain the best arguments of the opposing side, and why you think they are wrong.
What issues did the justices leave unresolved, if any? What additional issues are likely to arise in the future as a result of the Court’s decision?
Constitutional Law II Syllabus Spring 2009
American Constitutional Law II (Civil Rights and Civil Liberties)
Spring 2009 Syllabus
Dr. Mark J. Richards
Political Science (PLS) 307, MW, 6-9:20 p.m., Eberhard Center 410
Office hours for this course will be held at Eberhard 410 from 5:00-6, and after class, on the days the class meets. Also, I will have office hours in AuSable by appointment.
E-mail: richardm@gvsu.edu
Course blog: http://freespeechpolitics.blogspot.com
Voice mail: 331-3457
Prerequisites: PLS 102 or junior standing
COURSE OBJECTIVES
Constitutional Law Objectives
-Understand legal reasoning and theories of constitutional interpretation
-Comprehend the Supreme Court’s most important rulings on civil rights and civil liberties
-Analyze the disputes that the Supreme Court is currently considering
-Identify how politics and normative controversies are relevant to constitutional law
-Articulate opposing viewpoints and respond to them
General Education Theme Skill Objectives
-Speaking and Writing: Students will write two exams. Students will also write a paper. Lecture will be supplemented by in-depth class discussions.
-Critical and Creative Thinking: In the paper, students will be expected to analyze how the Supreme Court's civil rights decisions apply to contemporary cases. In essays and exams, the students will think about how to apply the cases they have studied to hypothetical controversies. In addition, the students will engage theories of constitutional interpretation, and apply those theories to practical areas of law.
-Locating, Evaluating and Using Information: All of the required components of the course require students to evaluate and resolve problematic situations through the location and use of the theories and cases presented in the course. The paper also requires students to use electronic legal databases.
-Integrating Knowledge and Viewing Ideas from Multiple Perspectives: In all of their written work and in class discussions, students are encouraged to analyze key Supreme Court decisions from at least two perspectives, and often more. The course also promotes student understanding of cases from social, political, philosophical, psychological, normative and legal perspectives.
Civil and Human Rights Movement Theme Objectives
-Looking at the Supreme Court's decisions on civil rights will help the students to understand the evolution and influence of legal, political and social discourses opposing the practice of racial segregation in America.
-Analysis of the Court's key civil rights decisions regarding affirmative action and segregation of neighborhoods, educational institutions and public accommodations will also promote student understanding of race as a contested social, psychological and political construct that defined citizenship and civil rights and continues to shape group relations in post-Civil Rights America.
-The course will address the ideals advocated by Civil Rights Movement leaders such as Thurgood Marshall, how those ideals led the Court to recognize civil rights, and whether the Court's decisions played a role in mobilizing Americans from diverse racial and social backgrounds to participate in the Civil Rights Movement and in spurring the development of other social justice movements nationally and internationally.
COURSE REQUIREMENTS
Grades:
Grades will be determined by the following:
30%: oral argument exercise and paper
10%: participation in class discussions
5%: attendance
30%: paper
25%: final exam
You must complete all components to receive a passing grade. Grade penalties will be imposed for late assignments. If an assignment will be late you must notify me in advance or I will not accept it.
Grading policy:The grades of "+" and "-" reflect variation among these categories.
A: The grade of A indicates the student has made an excellent effort, demonstrated thorough knowledge of the lecture materials and readings, and integrated knowledge in an analytic, concise, and cogent manner. The grade of A reflects that the student's work was superior with respect to all of these considerations, as compared to nearly everyone else in the class.
B: The grade of B indicates that the student has made an excellent effort, demonstrated solid knowledge of the lecture materials and readings, and integrated knowledge in an analytic, concise, and cogent manner. The grade of B reflects that the student's work could have been significantly improved with respect to at least one of these considerations.
C: The grade of C indicates that the student has made an average effort, demonstrated acceptable knowledge of the lecture materials and readings, and showed some integration of knowledge in an analytic, concise, and cogent manner. The grade of C reflects that the student's work could have been significantly improved with respect to at least two of these considerations
D: The grade of D indicates that the student has a serious deficiency in terms of at least one of the following factors: effort, knowledge of lecture materials and readings, and integration of knowledge.
F: The grade of F indicates that the student has a serious deficiency in terms of at least two of the following factors: effort, knowledge of lecture materials and readings, and integration of knowledge.
Grading scale
93-100 A
90-92 A-
87-89 B+
83-86 B
80-82 B-
77-9 C+
73-76 C
70-72 C-
67-9 D+
60-66 D
0-59 F
Preparation and Participation: You should have the day’s readings completed before you attend lecture, and should be prepared to discuss the readings. The reading load is quite reasonable, and you will be able to better understand lectures if you are prepared. I reserve the right to institute pop quizzes if student discussion is inadequate.Grading for participation is based on the quantity and quality of participation and assessed according to the professor's discretion. Attendance is graded separately. A complete absence of participation results in a grade of zero for the participation component of the course. A general guideline is that students seeking an average grade for participation (B-) should participate meaningfully at least once per lecture topic.
Lecture outlines: Outlines of lectures will be available at my course blog:
http://freespeechpolitics.blogspot.com
Keep in mind that these are only outlines, and you are still responsible for taking supplementary notes. The outlines are meant to facilitate your note taking and understanding, but are not a substitute for reading and participating in class.
Classroom Etiquette:
When we are present in the classroom we are here to learn about the course subject and participate in the class. I have found that some types of behavior can be detrimental to your own learning or that of your peers. In order to foster an atmosphere of participation and learning, I have developed the following guidelines:
1. Please do not use any electronic devices (e.g. computers, cell phones, Blackberries, etc.). The exception would be if it is required as an accommodation due to a qualified disability and approved by me in advance.
2. Please be polite and do not talk or whisper when other people are talking.
3. Please do not do any work or activity not related to the course (e.g. reading newspaper or doing work for another course).
4. If you need to leave the class early, please let me know in advance.
5. Please do your best to arrive on time.
Failure to comply with these guidelines will negatively impact your participation grade, determined at my discretion.
Honesty: I expect full compliance with all GVSU policies and regulations regarding academic misconduct and plagiarism (see the GVSU Catalog and the Student Code). Please talk to me if you are having a problem. Don’t risk your reputation.
Access: If you have questions about anything related to the course, please visit or call during office hours, send e-mail, or set up an appointment.Accommodations: If there is any student in this class who has special needs because of learning, physical or other disability, please contact me and Disability Support Services (DSS) at 616.331.249. Furthermore, if you have a disability and think you will need assistance evacuating this classroom and/or building in an emergency situation, please make me aware so I can develop a plan to assist you.
Pre-law advising: I am a pre-law advisor for GVSU. Check out my pre-law FAQ available via the course blog or www.gvsu.edu/prelaw Feel free to ask me questions anytime.
Attendance policy:Attendance is an integral part of your university education. Interacting with your instructor and your peers is essential to your education. Attendance is worth 5% of your overall course grade, unless you miss 5 or more courses (resulting in an F for the course), and is determined by the policy elaborated here.
Certain assignments may require your mandatory attendance.
I will pass around an attendance sheet at the beginning of each class. Sign it when you are present. There is no need to provide a reason or excuse for your absence as all absences affect your attendance grade. Keep in mind you can miss one class and still get an A for attendance so try to save that free absence for anything important.
Absences for events related to GVSU athletics, student organizations, etc. must be supported by signed documentation from, as appropriate, a coach, designated staff, or faculty advisor.
The grading scale for attendance:
0 absences: 100
1 absence: A (95)
2 absences: B (85)
3 absences: C (75)
4 absences: D (65)
5 or more absences: FAIL THE COURSE
COURSE MATERIALThe following three required books will be available at the bookstore:
David O'Brien. Constitutional Law and Politics, vol. 2, Civil Rights and Civil Liberties. 7th Edition. 2008.
Antonin Scalia. A Matter of Interpretation: Federal Courts and the Law: An Essay. Princeton, N.J.: Princeton University Press.
Mark Tushnet. The NAACP's Legal Strategy against Segregated Education.
COURSE OUTLINE AND READING LIST:
M 5/4
Introduction
U.S. Constitution and Amendments
Begin reading Tushnet, The NAACP's Legal Strategy against Segregated Education, entire.
I. Legal Reasoning and Constitutional InterpretationO'Brien, pp. 125-26.
II. Race, the Death Penalty, and the Eighth Amendment
W 5/6
continue section II.
O'Brien, pp. 1168-71
McCleskey v. Kemp (1987)
Roper v. Simmons (2005)
III. Theories of Constitutional Interpretation: Originalism, the Moral Reading, and Other Approaches Antonin Scalia. A Matter of Interpretation. Read Scalia’s portion, the critics’ (Gordon Wood, Laurence Tribe, and Ronald Dworkin) commentaries on Scalia, and Scalia’s responses to the critics.
*Introduce oral argument exercise
M 5/11
IV. The Fourth Amendment Guarantee Against Unreasonable Searches and Seizures
O'Brien pp. 870-78, 914-15
Minnesota v. Dickerson (1993)
United States v. Leon and Massachusetts v. Sheppard (1984)
V. Oral Argument preview: Safford Unified School District #1 v. Redding (08-479)Westlaw:Redding v. Safford Unified School District #1, 531 F.3d 1071, July 11, 2008 (U.S. Court of Appeals, Ninth Circuit).
New Jersey v. T.L.O., 469 U.S. 325, 1985.
W 5/13
Continue section V.
Oral Arguments – mandatory attendance
The Fifth Amendment Guarantee Against Self-accusation
O'Brien, pp. 1028-45
Miranda v. Arizona (1966)
Arizona v. Fulminante (1991)
Dickerson v. U.S. (2000)
M 5/18
VI. First Amendment: Freedom of Expression Fundamental Principles
Texas v. Johnson (1989)
Cohen v. California (1971)
First Amendment: Pornography and Obscenity
O’Brien, pp. 453-460
Miller v. California (1973)
Paris Adult Theatre I v. Slaton (1973)
Reno v. ACLU (1997)
W 5/20
ORAL ARGUMENT PAPER DUE
*Introduce paper assignment
First Amendment: Advocacy of Illegal ActionO’Brien, pp. 420-447
M 5/25 MEMORIAL DAY
*NO CLASS*
W 5/27
VII. First Amendment: Religious Liberties
Establishment Clause
O’Brien, pp. 718-728
Lemon v. Kurtzman (1971)
Zobrest v. Catalina Foothills School District (1993)
Zelman v. Simmons-Harris (2002)
Free Exercise Clause
O’Brien, pp. 819-825
Employment Division, Department of Human Resources of Oregon v. Smith (1990)
Church of the Lukumi Babalu Aye v. City of Hialeah (1993)
M 6/1
VIII. Substantive Due Process: Privacy, Autonomy and Reproductive Freedom (Fifth and Fourteenth Amendments)
Abortion
O'Brien, pp. 1236-46
Roe v. Wade (1973)
Planned Parenthood of Southeastern Pennsylvania v. Casey (1992)
Post-Roe rulings on Abortion, pp. 1266-69
Privacy and Autonomy
O'Brien, pp. 1232-35
Bowers v. Hardwick (1986)
Lawrence v. TX (2003)
W 6/3
IX. Equality: Race, Gender and the Fourteenth Amendment Equal Protection Clause
Introduction
O'Brien, pp. 1334-43
Racial Discrimination and State Action
O'Brien, pp. 1344-51
The Civil Rights Cases (1883)
Shelley v. Kraemer (1948)
M 6/8
School Desegregation
O'Brien, pp. 1388-1400
Brown v. Board of Education of Topeka, Kansas I (1954)
Brown v. Board of Education of Topeka, Kansas I (1955)
Parents Involved in Community Schools v. Seattle School District #1 (2007)
Affirmative Action
O'Brien, pp. 1456-63
City of Richmond v. J.A. Croson (1989)
Adarand Constructors, Inc. v. Pena (1995)
Gratz v. Bollinger (2003)
Grutter v. Bollinger (2003)
W 6/10
Discuss Tushnet, The NAACP's Legal Strategy against Segregated Education
Equal Protection and Gender EqualityO’Brien, pp. 1514-16
United States v. Virginia (1996)
Craig v. Boren (1976)
Exam Review
M 6/15
TERM PAPER DUE
XII. Second Amendment
Westlaw: District of Columbia v. Heller, 128 S.Ct. 2783, 2008.
PRESENTATIONS
W 6/17 FINAL EXAM DUE
Spring 2009 Syllabus
Dr. Mark J. Richards
Political Science (PLS) 307, MW, 6-9:20 p.m., Eberhard Center 410
Office hours for this course will be held at Eberhard 410 from 5:00-6, and after class, on the days the class meets. Also, I will have office hours in AuSable by appointment.
E-mail: richardm@gvsu.edu
Course blog: http://freespeechpolitics.blogspot.com
Voice mail: 331-3457
Prerequisites: PLS 102 or junior standing
COURSE OBJECTIVES
Constitutional Law Objectives
-Understand legal reasoning and theories of constitutional interpretation
-Comprehend the Supreme Court’s most important rulings on civil rights and civil liberties
-Analyze the disputes that the Supreme Court is currently considering
-Identify how politics and normative controversies are relevant to constitutional law
-Articulate opposing viewpoints and respond to them
General Education Theme Skill Objectives
-Speaking and Writing: Students will write two exams. Students will also write a paper. Lecture will be supplemented by in-depth class discussions.
-Critical and Creative Thinking: In the paper, students will be expected to analyze how the Supreme Court's civil rights decisions apply to contemporary cases. In essays and exams, the students will think about how to apply the cases they have studied to hypothetical controversies. In addition, the students will engage theories of constitutional interpretation, and apply those theories to practical areas of law.
-Locating, Evaluating and Using Information: All of the required components of the course require students to evaluate and resolve problematic situations through the location and use of the theories and cases presented in the course. The paper also requires students to use electronic legal databases.
-Integrating Knowledge and Viewing Ideas from Multiple Perspectives: In all of their written work and in class discussions, students are encouraged to analyze key Supreme Court decisions from at least two perspectives, and often more. The course also promotes student understanding of cases from social, political, philosophical, psychological, normative and legal perspectives.
Civil and Human Rights Movement Theme Objectives
-Looking at the Supreme Court's decisions on civil rights will help the students to understand the evolution and influence of legal, political and social discourses opposing the practice of racial segregation in America.
-Analysis of the Court's key civil rights decisions regarding affirmative action and segregation of neighborhoods, educational institutions and public accommodations will also promote student understanding of race as a contested social, psychological and political construct that defined citizenship and civil rights and continues to shape group relations in post-Civil Rights America.
-The course will address the ideals advocated by Civil Rights Movement leaders such as Thurgood Marshall, how those ideals led the Court to recognize civil rights, and whether the Court's decisions played a role in mobilizing Americans from diverse racial and social backgrounds to participate in the Civil Rights Movement and in spurring the development of other social justice movements nationally and internationally.
COURSE REQUIREMENTS
Grades:
Grades will be determined by the following:
30%: oral argument exercise and paper
10%: participation in class discussions
5%: attendance
30%: paper
25%: final exam
You must complete all components to receive a passing grade. Grade penalties will be imposed for late assignments. If an assignment will be late you must notify me in advance or I will not accept it.
Grading policy:The grades of "+" and "-" reflect variation among these categories.
A: The grade of A indicates the student has made an excellent effort, demonstrated thorough knowledge of the lecture materials and readings, and integrated knowledge in an analytic, concise, and cogent manner. The grade of A reflects that the student's work was superior with respect to all of these considerations, as compared to nearly everyone else in the class.
B: The grade of B indicates that the student has made an excellent effort, demonstrated solid knowledge of the lecture materials and readings, and integrated knowledge in an analytic, concise, and cogent manner. The grade of B reflects that the student's work could have been significantly improved with respect to at least one of these considerations.
C: The grade of C indicates that the student has made an average effort, demonstrated acceptable knowledge of the lecture materials and readings, and showed some integration of knowledge in an analytic, concise, and cogent manner. The grade of C reflects that the student's work could have been significantly improved with respect to at least two of these considerations
D: The grade of D indicates that the student has a serious deficiency in terms of at least one of the following factors: effort, knowledge of lecture materials and readings, and integration of knowledge.
F: The grade of F indicates that the student has a serious deficiency in terms of at least two of the following factors: effort, knowledge of lecture materials and readings, and integration of knowledge.
Grading scale
93-100 A
90-92 A-
87-89 B+
83-86 B
80-82 B-
77-9 C+
73-76 C
70-72 C-
67-9 D+
60-66 D
0-59 F
Preparation and Participation: You should have the day’s readings completed before you attend lecture, and should be prepared to discuss the readings. The reading load is quite reasonable, and you will be able to better understand lectures if you are prepared. I reserve the right to institute pop quizzes if student discussion is inadequate.Grading for participation is based on the quantity and quality of participation and assessed according to the professor's discretion. Attendance is graded separately. A complete absence of participation results in a grade of zero for the participation component of the course. A general guideline is that students seeking an average grade for participation (B-) should participate meaningfully at least once per lecture topic.
Lecture outlines: Outlines of lectures will be available at my course blog:
http://freespeechpolitics.blogspot.com
Keep in mind that these are only outlines, and you are still responsible for taking supplementary notes. The outlines are meant to facilitate your note taking and understanding, but are not a substitute for reading and participating in class.
Classroom Etiquette:
When we are present in the classroom we are here to learn about the course subject and participate in the class. I have found that some types of behavior can be detrimental to your own learning or that of your peers. In order to foster an atmosphere of participation and learning, I have developed the following guidelines:
1. Please do not use any electronic devices (e.g. computers, cell phones, Blackberries, etc.). The exception would be if it is required as an accommodation due to a qualified disability and approved by me in advance.
2. Please be polite and do not talk or whisper when other people are talking.
3. Please do not do any work or activity not related to the course (e.g. reading newspaper or doing work for another course).
4. If you need to leave the class early, please let me know in advance.
5. Please do your best to arrive on time.
Failure to comply with these guidelines will negatively impact your participation grade, determined at my discretion.
Honesty: I expect full compliance with all GVSU policies and regulations regarding academic misconduct and plagiarism (see the GVSU Catalog and the Student Code). Please talk to me if you are having a problem. Don’t risk your reputation.
Access: If you have questions about anything related to the course, please visit or call during office hours, send e-mail, or set up an appointment.Accommodations: If there is any student in this class who has special needs because of learning, physical or other disability, please contact me and Disability Support Services (DSS) at 616.331.249. Furthermore, if you have a disability and think you will need assistance evacuating this classroom and/or building in an emergency situation, please make me aware so I can develop a plan to assist you.
Pre-law advising: I am a pre-law advisor for GVSU. Check out my pre-law FAQ available via the course blog or www.gvsu.edu/prelaw Feel free to ask me questions anytime.
Attendance policy:Attendance is an integral part of your university education. Interacting with your instructor and your peers is essential to your education. Attendance is worth 5% of your overall course grade, unless you miss 5 or more courses (resulting in an F for the course), and is determined by the policy elaborated here.
Certain assignments may require your mandatory attendance.
I will pass around an attendance sheet at the beginning of each class. Sign it when you are present. There is no need to provide a reason or excuse for your absence as all absences affect your attendance grade. Keep in mind you can miss one class and still get an A for attendance so try to save that free absence for anything important.
Absences for events related to GVSU athletics, student organizations, etc. must be supported by signed documentation from, as appropriate, a coach, designated staff, or faculty advisor.
The grading scale for attendance:
0 absences: 100
1 absence: A (95)
2 absences: B (85)
3 absences: C (75)
4 absences: D (65)
5 or more absences: FAIL THE COURSE
COURSE MATERIALThe following three required books will be available at the bookstore:
David O'Brien. Constitutional Law and Politics, vol. 2, Civil Rights and Civil Liberties. 7th Edition. 2008.
Antonin Scalia. A Matter of Interpretation: Federal Courts and the Law: An Essay. Princeton, N.J.: Princeton University Press.
Mark Tushnet. The NAACP's Legal Strategy against Segregated Education.
COURSE OUTLINE AND READING LIST:
M 5/4
Introduction
U.S. Constitution and Amendments
Begin reading Tushnet, The NAACP's Legal Strategy against Segregated Education, entire.
I. Legal Reasoning and Constitutional InterpretationO'Brien, pp. 125-26.
II. Race, the Death Penalty, and the Eighth Amendment
W 5/6
continue section II.
O'Brien, pp. 1168-71
McCleskey v. Kemp (1987)
Roper v. Simmons (2005)
III. Theories of Constitutional Interpretation: Originalism, the Moral Reading, and Other Approaches Antonin Scalia. A Matter of Interpretation. Read Scalia’s portion, the critics’ (Gordon Wood, Laurence Tribe, and Ronald Dworkin) commentaries on Scalia, and Scalia’s responses to the critics.
*Introduce oral argument exercise
M 5/11
IV. The Fourth Amendment Guarantee Against Unreasonable Searches and Seizures
O'Brien pp. 870-78, 914-15
Minnesota v. Dickerson (1993)
United States v. Leon and Massachusetts v. Sheppard (1984)
V. Oral Argument preview: Safford Unified School District #1 v. Redding (08-479)Westlaw:Redding v. Safford Unified School District #1, 531 F.3d 1071, July 11, 2008 (U.S. Court of Appeals, Ninth Circuit).
New Jersey v. T.L.O., 469 U.S. 325, 1985.
W 5/13
Continue section V.
Oral Arguments – mandatory attendance
The Fifth Amendment Guarantee Against Self-accusation
O'Brien, pp. 1028-45
Miranda v. Arizona (1966)
Arizona v. Fulminante (1991)
Dickerson v. U.S. (2000)
M 5/18
VI. First Amendment: Freedom of Expression Fundamental Principles
Texas v. Johnson (1989)
Cohen v. California (1971)
First Amendment: Pornography and Obscenity
O’Brien, pp. 453-460
Miller v. California (1973)
Paris Adult Theatre I v. Slaton (1973)
Reno v. ACLU (1997)
W 5/20
ORAL ARGUMENT PAPER DUE
*Introduce paper assignment
First Amendment: Advocacy of Illegal ActionO’Brien, pp. 420-447
M 5/25 MEMORIAL DAY
*NO CLASS*
W 5/27
VII. First Amendment: Religious Liberties
Establishment Clause
O’Brien, pp. 718-728
Lemon v. Kurtzman (1971)
Zobrest v. Catalina Foothills School District (1993)
Zelman v. Simmons-Harris (2002)
Free Exercise Clause
O’Brien, pp. 819-825
Employment Division, Department of Human Resources of Oregon v. Smith (1990)
Church of the Lukumi Babalu Aye v. City of Hialeah (1993)
M 6/1
VIII. Substantive Due Process: Privacy, Autonomy and Reproductive Freedom (Fifth and Fourteenth Amendments)
Abortion
O'Brien, pp. 1236-46
Roe v. Wade (1973)
Planned Parenthood of Southeastern Pennsylvania v. Casey (1992)
Post-Roe rulings on Abortion, pp. 1266-69
Privacy and Autonomy
O'Brien, pp. 1232-35
Bowers v. Hardwick (1986)
Lawrence v. TX (2003)
W 6/3
IX. Equality: Race, Gender and the Fourteenth Amendment Equal Protection Clause
Introduction
O'Brien, pp. 1334-43
Racial Discrimination and State Action
O'Brien, pp. 1344-51
The Civil Rights Cases (1883)
Shelley v. Kraemer (1948)
M 6/8
School Desegregation
O'Brien, pp. 1388-1400
Brown v. Board of Education of Topeka, Kansas I (1954)
Brown v. Board of Education of Topeka, Kansas I (1955)
Parents Involved in Community Schools v. Seattle School District #1 (2007)
Affirmative Action
O'Brien, pp. 1456-63
City of Richmond v. J.A. Croson (1989)
Adarand Constructors, Inc. v. Pena (1995)
Gratz v. Bollinger (2003)
Grutter v. Bollinger (2003)
W 6/10
Discuss Tushnet, The NAACP's Legal Strategy against Segregated Education
Equal Protection and Gender EqualityO’Brien, pp. 1514-16
United States v. Virginia (1996)
Craig v. Boren (1976)
Exam Review
M 6/15
TERM PAPER DUE
XII. Second Amendment
Westlaw: District of Columbia v. Heller, 128 S.Ct. 2783, 2008.
PRESENTATIONS
W 6/17 FINAL EXAM DUE
Tuesday, April 7, 2009
Establishment Clause
ESTABLISHMENT CLAUSE
Dr. Mark J. Richards
I. The Text
First Amendment: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."
II. The Framers
A. James Madison:
1. Initially argued that Bill of Rights was unnecessary to protect religious freedom.
2. Later proposed: "nor shall any national religion be established"
B. Later, House deleted "national"
C. Senate preferred "Congress shall make no law establishing articles of faith or a mode of worship."
D. Conference committee, chaired by Madison, agreed on what we have today.
III. Overview
A. Everson v. Board of Education of Ewing Township (330 U.S. 1, 1947)
Applies establishment clause to states based on the 14th Amendment (incorporation).
B. Three approaches (O'Brien, p. 663)
1. Strict separation "requires state neutrality and a secular purpose for legislation, but may permit some benefits or indirect support for religion." For example, Lemon. This was the generally accepted doctrine until the mid-1980s, when it started to be eroded.
Justices who tend to follow this approach to some extent: Souter, Stevens, Breyer, Ginsburg
2. Strict neutrality "requires not merely a secular purpose for legislation but bars all laws that either aid or hinder religion." This is sometimes referred to as the "wall of separation" theory. For example, Everson (in theory, not in practice).
Justices who tend to follow this approach to some extent: Stevens, Ginsburg?
3. An "accomodationist approach, while maintaining that laws must have a secular purpose, allows for governmental accomodation of religion in ways that further religious freedom without endorsing a particular religion." See Justice O'Connor's "endorsement test" in Capitol Square Review Board v. Pinette (115 S.Ct. 2440, 1995).
See also: Witters v. Washington Dept. of Services for Blind (1986), Zobrest v. Catalina Foothills School District (1993), Agostini v. Felton (1997), Rosenberger v. University of Virginia (1995)
Justices who tend to follow this approach to some extent: Rehnquist, Scalia, Thomas, O’Connor, Kennedy
IV. 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.
Covered in detail below
D. Others
Edwards v. Aguillard, 482 U.S. 578, 1987. 7-2. Establishment clause does not permit Louisiana to forbid teaching of evolution unless accompanied by teaching of "creation science."
V. 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: Does the entanglement prong provide a clear standard? Doesn't the entanglement prong require the Court to become too involved in policymaking? 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?
VI. 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. Issue
Does the establishment clause of the first amendment forbid the Catalina Foothills School District from providing a sign-language interpreter for a deaf student at a Roman Catholic High School?
C. Holding (Rehnquist)
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.
D. Reasoning
1. Court has never held that religious institutions can 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.
E. 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
3. O'Connor, joined by Stevens: would have decided case on statutory basis and avoided constitutional question.
VII. 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 a 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.
F. Discuss
Dr. Mark J. Richards
I. The Text
First Amendment: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."
II. The Framers
A. James Madison:
1. Initially argued that Bill of Rights was unnecessary to protect religious freedom.
2. Later proposed: "nor shall any national religion be established"
B. Later, House deleted "national"
C. Senate preferred "Congress shall make no law establishing articles of faith or a mode of worship."
D. Conference committee, chaired by Madison, agreed on what we have today.
III. Overview
A. Everson v. Board of Education of Ewing Township (330 U.S. 1, 1947)
Applies establishment clause to states based on the 14th Amendment (incorporation).
B. Three approaches (O'Brien, p. 663)
1. Strict separation "requires state neutrality and a secular purpose for legislation, but may permit some benefits or indirect support for religion." For example, Lemon. This was the generally accepted doctrine until the mid-1980s, when it started to be eroded.
Justices who tend to follow this approach to some extent: Souter, Stevens, Breyer, Ginsburg
2. Strict neutrality "requires not merely a secular purpose for legislation but bars all laws that either aid or hinder religion." This is sometimes referred to as the "wall of separation" theory. For example, Everson (in theory, not in practice).
Justices who tend to follow this approach to some extent: Stevens, Ginsburg?
3. An "accomodationist approach, while maintaining that laws must have a secular purpose, allows for governmental accomodation of religion in ways that further religious freedom without endorsing a particular religion." See Justice O'Connor's "endorsement test" in Capitol Square Review Board v. Pinette (115 S.Ct. 2440, 1995).
See also: Witters v. Washington Dept. of Services for Blind (1986), Zobrest v. Catalina Foothills School District (1993), Agostini v. Felton (1997), Rosenberger v. University of Virginia (1995)
Justices who tend to follow this approach to some extent: Rehnquist, Scalia, Thomas, O’Connor, Kennedy
IV. 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.
Covered in detail below
D. Others
Edwards v. Aguillard, 482 U.S. 578, 1987. 7-2. Establishment clause does not permit Louisiana to forbid teaching of evolution unless accompanied by teaching of "creation science."
V. 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: Does the entanglement prong provide a clear standard? Doesn't the entanglement prong require the Court to become too involved in policymaking? 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?
VI. 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. Issue
Does the establishment clause of the first amendment forbid the Catalina Foothills School District from providing a sign-language interpreter for a deaf student at a Roman Catholic High School?
C. Holding (Rehnquist)
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.
D. Reasoning
1. Court has never held that religious institutions can 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.
E. 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
3. O'Connor, joined by Stevens: would have decided case on statutory basis and avoided constitutional question.
VII. 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 a 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.
F. Discuss
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