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The Missouri Bar Constitution Day Program
A Joint Project of The Missouri Bar and the Missouri School Boards Association
September 18, 2006
STUDY GUIDES FOR THE I-CASTS
The Missouri Bar and the Missouri School Boards Association are proud to sponsor The Missouri Bar Constitution Day Program. The Missouri Bar has been committed for many years to law-related education because as lawyers we fully realize that the survival of our system of governance and the preservation of our freedoms depend on our young people getting an effective civic education. The Missouri Bar President-elect Ron Baird, who is making civic education his platform, writes, “The words of Alexis de Tocqueville, who studied our democracy and authored the famous account of it in the book Democracy in America, ring as true today as they did in 1835: ‘It cannot be doubted that in the United States the instruction of the people powerfully contributes to the support of the democratic republic.’ It is certainly true that education ensures the liberties that the Founding Fathers visualized so many years ago. Lawyers have always played an essential role in ensuring the liberties of this great country.”
There will be two 45 minute i-pod casts on September 18th. They begin at 9:00 a.m. and 1:00 p.m. Brent Ghan of the Missouri School Boards Association will moderate the programs. Both broadcasts will feature President-elect Ron Baird and Professor Michael A. Middleton, Deputy Chancellor and Professor of Law, University of Missouri-Columbia. The third panelists will be Supreme Court of Missouri judges. In the morning, Judge William Ray Price will be on the panel and in the afternoon, Judge Mary Rhodes Russell. For additional biographical information on the panelists, go to:
- President-elect Ron Baird, www.mobar.org.
- Professor Michael A. Middleton, http://law.missouri.edu/faculty/middletonm.html
- Judge William Ray Price, www.courts.mo.gov (Click on the Supreme Court link, and then on the Judges link.)
- Judge Mary Rhodes Russell, www.courts.mo.gov (Click on the Supreme Court link, and then on the Judges link.)
Each panelist will make short introductory remarks and then begin to answer the questions that your students pose to them. You can begin to submit your questions fifteen minutes before the i-cast and throughout the program. Questions not answered during the program will be posted on our website and answered within three weeks.
The purpose of the study guides
“The Constitution” is an extremely broad topic for a 45 minute broadcast so we surveyed a number of government teachers and talked to the National Constitution Center about constitutional topics that are affecting students’ lives. Two areas were consistently identified as areas of interest–a variety of privacy issues and religion in the public schools. Thus, those are the two areas we are going to focus our study guides on and subsequently would suggest that the students focus their questions on for the panel. Since we are celebrating Constitution Day, it is also totally appropriate for your students to ask questions about the history of the Constitution and various provisions of the Constitutions. We will provide a study guide for those kinds of issues, too. In addition, if your students have a burning constitutional issue that is not covered by these three areas that they want to pose, please feel free to have them do so. We will be doing another i-pod cast for Bill of Rights Day on December 15 and will focus on Freedom of Speech and Press and your students may want to save their questions on those topics for then. We hope you will join us on that day, too.
Suggestions for using the study guides
We are aware that instructional time frames for using the study guides will vary. Ideally, you could devote several class periods prior to the telecast using all of the study guides. However, there are several other ways they could be used:
- Divide the three subject areas among the classes you teach or among the students in your class i.e. one group concentrating on the historical and philosophical foundations of the Constitution, another on privacy issues and a third on religion and the public school issues. Each group would formulate questions for the panel.
- Choose one area to concentrate on with your class and formulate questions in that area for the panel.
- Initially, use the handouts that ask the students to think about various issues and let them formulate questions and use the other information for background if they need further information in order to formulate their questions.
- After the Constitution Day i-pod cast, use the study guides as a greater in-depth look at one or more of the subjects.
- http://supct.law.cornell.edu is an excellent website for finding Supreme Court cases.
A couple of “please do ask” requests
While there are hardly any “do not ask” areas for this program. Please have your students take into consideration the following:
- The judges cannot comment on pending cases. For example, there is a pending Missouri case regarding the distribution of Bibles in an elementary school. The judges cannot comment on that case and neither will Professor Middleton nor President-elect Baird feel comfortable commenting on pending litigation.
- The students should not ask for personal legal advice on any topic.
If you have questions, please feel free to e-mail Millie Aulbur, Director of Law-Related Education, The Missouri Bar, at firstname.lastname@example.org.
The History of the Constitution
Constitution Day Considerations
- To encourage students to think about the philosophical and historical roots of the Constitution.
- To have students consider modern government in light of the Framers’ original intentions.
- To prepare students for possible questions they may want to ask the panelists for The Missouri Bar Constitution Day Program.
- Review with students the events leading up to the Constitutional Convention and the writing and ratification of the Constitution. Two excellent resources are www.archives.gov and www.constitutioncenter.org . The Missouri Bar highly recommends the Random House’s The Constitution of the United States of America: A Teacher’s Guide, found at www.constitutioncenter.org
- Distribute the student handout and discuss the questions in class or in small groups. Have the class consider if they would like for The Missouri Bar Constitution Day panelists to comment on any of these issues. If so, formulate questions for consideration.
Enrichment and extension:
- The Preamble is an important philosophical part of the Constitution. Reflect on it by using the lesson plan on it found on www.mobar.org in the Constitution Day section.
- Research both the Magna Carta and the English Bill of Rights. What ideas from these documents are contained in our Constitution? Compare and contrast a parliamentary government (Great Britain) and a republican form of government (United States).
Student Handout—The History of the Constitution
The History of the Constitution
Constitution Day Considerations
- How did the Framers’ early experiences with democratic colonial governments and their beliefs about government influence how they set up the new government? How did the abuses the Framers suffered under British rule affect how they wrote the Constitution?
- As he left the Constitutional Convention, Benjamin Franklin allegedly was asked what had come out of the convention and he responded, “A republic, if you can keep it.” What do you think he meant by that? Why do you think we have been able to keep this republic?
- Consider some of the compromises the Framers made at the Constitutional Convention. Do you think the Great Compromise, which resulted in two houses of Congress, is still a good idea today? As you discuss this issue, consider how the formula for deciding the number of each state’s congressional delegation is the number of electoral votes each state gets. The other major compromises were about slaves—3/5 clause, Fugitive Slave provision, allowing importation of slaves until 1808. How would you have handled the slavery issue if you had been a delegate? Why do you think anti-slavery Framers agreed to these compromises?
- Do you think we need a constitutional convention to consider writing a new constitution? Why or why not. Why do you think our Constitution has survived for over 200 years? Do you think the proceedings of a modern constitutional convention could be kept as secret as the first one?
- What do you think of the idea of federalism—the states have some powers and the national government has others? What powers do you think each should have—what decisions are better made at the national level? At the state level?
- Our government is one of separation of powers and checks and balances. What do we mean by that? How does the Constitution provide for both of these concepts? Do you think the branches have equal power? Why or why not?
- The Founders and Framers both feared an executive branch that was too strong; they did not want a king. How do you think they would view how the role of the president has changed over the last 200 years?
Privacy Issues for High School Students
Constitution Day Considerations
- To introduce students to the concept of constitutional privacy.
- To introduce students to the various ways the 4th Amendment may apply to them in a school situation.
- To introduce students to Supreme Court cases that deal with students and 4th Amendment issues.
- To stimulate discussion that will lead to questions for the panelists for The Missouri Bar Constitution Day Program.
- Constitutional privacy is worthy of a semester in law school. However, for purposes of this lesson, teachers need to establish several things with their students as background:
- Although the word privacy is never mentioned in the Constitution, over the years, the Supreme Court of the United States has held that the 4th Amendment protects people’s privacy from government intrusion. It is critical that students realize that the 4th Amendment protects their privacy from the government, not anyone else or any other entity.
- Students need to have some knowledge of the 4th Amendment and how it has evolved. The key concepts and historical developments are in Handout #1—Privacy Issues for High School Students.
- The theme in 4th Amendment cases is the Supreme Court weighing the rights of the accused with the government’s need to protect its citizens.
- Public schools, because they are government funded, are considered “government”.
- Students have constitutional rights. Discuss the case of Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969) with the students. Although that case dealt with the First Amendment guarantee of free speech, the Supreme Court’s holding in Tinker sets the stage for discussing constitutional privacy issues as they relate to students in a school setting because this case made it clear that in a school setting, students have constitutional rights that a school must honor. (A summary of the Tinker case is Handout #2—Privacy Issues for High School Students.)
- The theme in all cases dealing with high school students and various constitutional issues is the tension between protecting the students’ constitutional rights and the school being allowed to do what it needs to protect its students and to maintain an effective educational climate.
- Brainstorm with students about the variety of privacy issues that they may be concerned about. After the brainstorming, distribute Handout #3– Privacy Issues for High School Students, which provides a summary of the various privacy issues that have arisen since Tinker and a couple of current events that may or may not become areas of litigation. Have the students discuss how they would rule in each case. After they have discussed the cases, distribute Handout #4, Privacy Issues for High School Students, which provides how the Supreme Court of the United States ruled in the cases:
Significance of New Jersey v. T.L.O—Under the 4th Amendment, for a search to be reasonable, the government official doing the search must have probable cause to believe that a law has been broken. In this case, the Court held that, in a school, the probable cause need only be a belief that a school rule may have been violated.
Significance of Vernonia v.Acton—The school district’s concerns about drug usage among its student athletes was sufficient probable cause for mandatory random drug testing to be considered a reasonable search. The Court was careful to point out that the school district had identified a significant drug problem among the athletes and that the results of the mandatory drug testing would not be turned over to law enforcement officials.
The Court expanded its holding in Vernonia seven years later in the case of Board of Education of Independent School District No. 92 of Pottawatomie City v. Earls,536 U.S. 822 (2002). In that case, the school district policy for mandatory drug testing included everyone in extracurricular activities. (The students who challenged the policy were in band and on the academic team.) Unlike the Vernonia school district, the Pottawatomie School District had not articulated that there was a drug problem in the school. Nevertheless, the Court held that the school’s drug testing policy did not violate the 4th Amendment, once again citing the school’s need to address its general concerns about teen drug usage and once again pointing out that the drug test results would not be shared with law enforcement officials..
Enrichment and extension:
- For a lesson plan on the Fourth Amendment featuring cases relevant to students, go to www.mobar.org to the “Educators” link, then to the “Online Civics Library of The Missouri Bar,” then to lesson plans.
- Read the entire Mapp v. Ohio case about the Exclusionary Rule. (Go to http://supct.law.cornell.edu/supct).
- Go to www.landmarkcases.org for further information and activities for the Tinker and New Jersey v. TLO cases.
- Beginning with the case of Griswold v. Connecticut, 381 U.S. 479 (1965), study how the idea of “privacy” became associated with the 4th Amendment. (Go to http://supct.law.cornell.edu/supct)
- Consider the most recent privacy issue that has arisen—warrantless wiretapping by the executive branch of the federal government. For an excellent lesson plan and discussion guide on this topic, go to www.billofrightsinstitute.org to e-lessons.
- Traffic checkpoints are an interesting 4th Amendment issue. Of course, law enforcement officials conducting the checkpoints do not have search warrants. The Supreme Court of the United States has held that sobriety and immigration checks do not violate the 4th Amendment. See United States v. Martinez-Fuerte, 428 U.S. 543 (1976) and State Police v. Sitz, 496 U.S. 444 (1990). However, in Indianapolis, In, et al. v. Edmond, James, 531 U.S. 32 (2000), the Court held that traffic checkpoints to catch drug dealers violated the 4th Amendment.
- Invite law enforcement officials, criminal defense attorneys and prosecutors as guest speakers to talk about how 4th Amendment issues are a routine part of their jobs.
Handout #1—Privacy Issues for High School Students
The Evolution of the Fourth Amendment
When the Bill of Rights was written and ratified, it was fresh in the minds of the citizens of the newly formed country of the United States how British soldiers and government officials would search their homes and seize their belongings without any apparent reason. Therefore, it is not surprising that the 4th Amendment was proposed and ratified:
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 person or things to be seized.
The key concepts in the Fourth Amendment are:
- People have a right to feel that their homes and possessions are safe and secure from government intrusion.
- Law enforcement and government officials need to get a warrant—an official paper signed by a court official—before they can search a person’s home or things.
- Law enforcement and government officials can only get this warrant if they have “probable cause” to believe a crime has been committed and the place, person or thing they are searching has something to do with the crime.
Although these concepts seem simple on their face, the Fourth Amendment is the subject of more Supreme Court cases than any other amendment. Every year, the Supreme Court chooses to tackle at least one Fourth Amendment issue. That is why there is a constant evolution of how the Fourth Amendment both allows for people’s privacy in their homes and things to be protected and for law enforcement officials to be able to investigate crimes and keep their community safe.
Exploring the application of the 4th Amendment
There are two questions that always must be considered with Fourth Amendment issues:
- Was there a search?
- If so, was the search reasonable?
And sometimes there is a third question:
- If there was not a search warrant, is there any way that the search can be considered “reasonable”?
What is a search? Some of the “searches” the Court has addressed have been:
- Looking around in a home or apartment.
- Looking around in an automobile, including the trunk.
- Wire taps.
- Taking blood or urine samples and x-rays.
- Looking through binoculars and telescopes into someone’s home.
- Dog sniffing.
- Traffic checkpoints.
Whether a search is reasonable is a more difficult question and here are some things to consider:
- The right to be free from unreasonable searches also means that a person has an expectation of privacy in the thing being searched. For example, someone’s home, purse, car, school locker and even a hotel room the person has paid for are areas that someone has some expectation as being a private place. But what about a friend’s house or a friend’s car? What about trash bags in front of someone’s home? What about using technology to sense heat coming from someone’s house? These are all questions the Court has thought about and made rulings upon. (The Court held there is no expectation of privacy in a friend’s home or car or in trash bags placed on the curb for pick up by the garbage truck. However, there is an expectation of privacy in heat coming from a home.)
- A search with a warrant is usually considered reasonable unless the person who getting warrant has lied or relied on someone else not trustworthy.
What is a reasonable search when there is no warrant? Is this even allowed? This has been the most debated and argued of Fourth Amendment issues. Some of the circumstances that the Court has found where there is a reasonable search without a warrant are:
- A search of someone after the person has been arrested.
- When someone consents to a search.
- When something is in plain view.
- When officers stop someone because they suspect the person is committing or has committed a crime, they may “frisk” or “pat down” someone.
- Most automobile searches because the evidence could “drive away” before a search warrant can be obtained.
- Most border and airport searches.
- Exigent or emergency circumstances.
The Exclusionary Rule
Probably, the most significant Fourth Amendment event occurred in 1961 when the Supreme Court created the Exclusionary Rule in the case of Mapp v. Ohio, 367 U.S. 643 (1961). Why is this case considered so significant? Before this time, criminal defendants would raise Fourth Amendment issues and the trial court judge would hear their complaints. Sometimes, the trial court judge would reprimand the law enforcement officers who violated the defendant’s Fourth Amendment rights. In Mapp v. Ohio, the Court held that, in order for the Fourth Amendment to have any real meaning, any evidence obtained in violation of the Fourth Amendment could not be admitted at trial. After the Mapp case, law enforcement officers received training about Fourth Amendment issues. Prosecutors and law enforcement officers realized that it would be difficult to convict someone accused of a crime without key evidence. For example, a drug case without the seized drugs as evidence is not much of a case.
Handout #2—Privacy Issues for High School Students
Tinker v. Des Moines
(Partially excerpted from www.landmarkcases.org)
John and Mary Beth Tinker were public school students in Des Moines, Iowa in December of 1965. As part of a group against American involvement in the Vietnam War, they decided to publicize their opposition by wearing black armbands to school. Having heard of the students’ plans, the principals of the public schools in Des Moines adopted and informed students of a new policy concerning armbands. This policy stated that any student who wore an armband to school would be asked immediately to remove it. A student who refused to take off his or her armband would be suspended until agreeing to return to school without the band.
Two days later and aware of the school policy, the Tinker children and a friend decided to wear armbands to school. Upon arriving at school, the children were asked to remove their armbands. They did not remove the armbands and were subsequently suspended until they returned to school without their armbands. Their fathers filed suit in U.S. District Court. The case came down to this fundamental question: Do the First Amendment rights of free speech extend to symbolic speech by students in public schools?
The case went all the way to the Supreme Court of the United States. The court ruled 7-2 in favor of the three students. Justice Abe Fortas wrote the majority opinion and his quote about the rights of high school students is now legendary: “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” However, Justice Fortas also foreshadows the Court’s future opinions involving high school students when he says, “On the other hand, the Court has repeatedly emphasized the need for affirming the comprehensive authority of the States and of school officials, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools.”
Handout #3—Privacy Issues for High School Students
Constitutional Privacy Issues and High School Students
Key Cases and Current Events
For each case or current event scenario below, consider what questions you may want to ask The Missouri Bar Constitution Day panelists and consider the following as you read them:
- Is there some kind of privacy issue? Did the student(s) have some expectation of privacy in these situations?
- Is it a 4th Amendment issue—that is, is the government involved in some kind of search and seizure?
- Who or what is the governmental entity?
- Was there a search? If so, was it reasonable?
- The theme in all cases dealing with high school students and various constitutional issues is the tension between protecting the students’ constitutional rights and the school being allowed to do what it needs to protect its students and to maintain an effective educational climate. This is what Justice Abe Fortas was talking about in Tinker. So ask the question—does the school have a legitimate need to take the action it is taking? Does it are should it outweigh a student’s right to privacy?
- For the court cases, consider how would you rule if you were a Supreme Court Justice?
- Would your ruling have been different if the setting was not a school?
Case #1–New Jersey v. T.L.O., 469 U.S. 325 (1985).
Facts of the Case
On March 7, 1980, a teacher at Piscataway High School in New Jersey found two girls smoking in a restroom. Since this was a violation of school rules, the teacher took the two students to the principal’s office. The assistant vice-principal questioned the two girls separately. One student admitted that she had been smoking. However, T.L.O. denied that she had been smoking in the restroom and claimed she did not smoke at all. The assistant vice principal then asked to see T.L.O.’s purse. When he opened the purse he found a pack of cigarettes and also noticed a package of rolling papers which the vice-principal knew were associated with marijuana use. He then searched the purse more thoroughly and found a small quantity of marijuana, a pipe, several empty plastic bags, a substantial amount of money, a card that appeared to be a list of students who owed T.L.O. money, and two letters that implicated T.L.O. in the distribution and sale of marijuana, a crime under New Jersey law. T.L.O. (initials used because defendant was a juvenile) won her case in the New Jersey courts and the school appealed to the Supreme Court of the United States.
Appellant’s (State of New Jersey) argument: The vice-principal’s search of the purse was reasonable because a teacher had told the vice-principal that T.L.O. had been smoking. Thus, the vice-principal had reasonable cause to suspect a school rule had been broken. When the vice-principal was searching for the cigarettes, the drug-related evidence was in plain view. Plain view is an exception to the warrant requirement of the 4th Amendment.
Respondent’s (T.L.O.) argument: The vice-principal had no probable cause to believe that T.L.O. had committed a crime when he searched her purse. Possession of and use of cigarettes (at that time) were not crimes. Belief that a school rule has been broken is not grounds for a warrantless search. Furthermore, even if the vice-principal had the right to search T.L.O.’s purse for cigarettes, that the search should have ended when the cigarettes were found.
Which argument do you agree with? If searching a purse is okay, what about lockers and desks? Is using a drug-sniffing dog okay?
Case #2 VERNONIA SCHOOL DISTRICT v. ACTON, 515 U.S. 646 (1995).
Facts of the Case
Vernonia, Oregon, is a small community of about 3,000 people with a student population of 690 students. In this small logging community, most of the students participate in school athletics and school athletic programs are a major focus of the community. Between 1985 and 1989, the teachers and administrators of Vernonia School District became concerned about what they observed to be a dramatic increase in the use of illegal drugs among the students, many of them student athletes. The increase in drug use corresponded with an increase in student disciplinary problems. Many student athletes openly bragged about using drugs.
Prior to 1989, administrators instituted drug education programs and used drug-sniffing dogs to combat the escalating drug problem. These measures did not work. Thus, in 1989, the administration adopted a policy that required all students who participated in interscholastic athletics to take a drug test at the beginning of the athletic season and at random times throughout the season. The urine of athletes was tested strictly for the presence of drugs. The type of test used is considered 99.94% accurate. The results were kept confidential and were strictly used by the school. Those athletes who tested positive for drugs had to participate in a drug-counseling program for six weeks. They also had to agree to weekly drug testing or face being suspended from the team for the current season and all following seasons. If a student refused to be tested, the student was suspended from inner scholastic athletics for the season.
After the policy went into effect, disciplinary complaints dropped by 50%. Teachers saw a drop in the use of drugs among their students and saw approval for drug use also drop.
James Acton was in seventh grade during the 1991-1992 school year and wanted to play football. However, he and his parents refused to sign the consent form for the drug testing. In accordance with the school policy, he was suspended from interscholastic athletics. The Actons brought a suit against the school in the federal district court, claiming that the school’s policy violated James’ Fourth Amendment right to be free from unreasonable searches and seizures. They won the case in the federal district court and the school appealed to the Supreme Court of the United States.
Appellant’s (Vernonia School District) argument:
- Collecting a student athlete’s urine is a “search” and, therefore, there is a Fourth Amendment issue as to whether the search is reasonable. Reasonableness is judged in this case by balancing the intrusion of requiring a student athlete to provide a urine sample against the school’s interest in curbing illegal drug use.
- School children require a greater degree of supervision than do adults. The requirements that school children receive physical examinations and have vaccinations indicate that they have a lesser expectation of privacy than the general population. Student athletes have an even lesser expectation of privacy because they undress in open locker rooms, are subject to preseason physical exams and rules regulating their conduct.
- The urine is tested only for drugs and only a very limited group know the results. The results are not released to medical personnel or the law enforcement community.
- The importance of deterring illegal drug use by school children cannot be doubted. Moreover, the policy of drug testing athletes is directed strictly to student athletes who are more susceptible to injuring themselves or others while using illegal drugs.
Respondent’s (James Acton) argument:
- The Fourth Amendment generally forbids searches of whole groups. There must be suspicion of the individual to justify the search.
- Students who are disruptive or act suspicious should be tested–this would not violate anyone’s constitutional rights.
- By focusing on individual suspicion, the whole process is kept confidential and then “any distress arising from what turns out to be a false accusation can be minimized.”
- “It would be intolerable and unreasonable if a prohibition agent were authorized to stop every automobile on the chance of finding liquor and thus subject all persons lawfully using the highways to the inconvenience and indignity of such a search.”
Current Event #1—Phone Records and Privacy
Partially excerpted from the Bill of Rights Institute e-lessons:
The National Security Administration (part of the Executive Branch of the federal government) has collected the phone records for calls originating in the United States. The goal is to create a database of every call ever made within the borders of the United States. The NSA is sifting through the information to find patterns that may reveal potential terrorist activity. According to the White House, all activities conducted are lawful and no domestic conversations are being tapped into without a warrant. The President states that Congress gave this authority to the administration when they authorized the use of military force by the White House after the September 11, 2001 terrorist attacks. His spokesperson has stated on numerous occasions that all surveillance activities are taking place lawfully.
For your consideration:
- Is it a violation of the Fourth Amendment’s protections for the government to collect and store phone records in a time of war even without any suspicion of specific wrongdoing?
Proposed arguments by various groups—which do agree with and why?
No, it does not violate Fourth Amendment protections because…
- Surveillance that might be considered unreasonable during a time of peace, may be necessary and justified during wartime.
- The police often gather phone records for use in investigations.
Yes, it does violate Fourth Amendment protections because …
- collecting and storing private phone records without a warrant based on probable cause violates a person’s Fourth Amendment rights.
- the police gather phone records in investigations, but suspicion of guilt is involved. In this instance, information is collected and stored without any grounds for suspicion.
- this is not a power explicitly granted to the Executive Branch in a time of war.
- Would the government have probable cause to place a wiretap on your phone based solely on your phone records?
Proposed arguments by various groups—which do you agree with and why?
Yes. The government must still ask for court approval when placing a wiretap so law enforcement agencies would have to demonstrate to the courts that your phone records indicated probable cause of criminal activity.
No. Many amendments, taken as a whole and incorporated into the states by the Fourteenth Amendment, allow for a right to privacy that precludes the government from placing a wiretap on your phone simply based on the phone numbers you call. The First Amendment’s protections of speech, religion and assembly allows for freedom of association and conscience – even with suspected terrorists. The Third Amendment protects the people from government intrusion in their home. The Fourth Amendment protects “[t]he right of the people to be secure in their persons…” The Fifth Amendment protects citizens from unwilling self-incrimination, and the Ninth Amendment protects the natural rights of the people which are not listed in the Constitution.
- Would you be willing to allow the government to read your emails or listen to your phone conversations if the government said such activities might prevent a future terrorist attack? Why or why not?
- During the Virginia Convention on the ratification of the Constitution, James Madison made the following statement: “Since the general civilization of mankind, I believe there are more instances of the abridgment of freedoms of the people by gradual and silent encroachment of those in power than by violent and sudden usurpations.”
Do you agree or disagree with this statement. Explain your answer.
Current Event #2—Stadium and Subway Searches
Partially excerpted from the Bill of Rights Institute e-lessons:
Recent court cases in New York and Florida have brought the Fourth Amendment to the forefront. New York City subway riders are subject to a random search upon entering the subway system. Fans attending Tampa Bay Buccaneer football games (and any other National Football League game) are patted down. In both cases, lawsuits have been filed claiming that these searches are unconstitutional. Do these actions violate a person’s right to be secure against unreasonable searches and seizures? The reasons given for these searches are due to the terrorist attacks on September 11, 2001 and in London, England in the summer of 2005, these public places may be potential targets. The searches are an attempt to prevent a future attack and to make the public using these services feel safer. The people suing in these cases claim that the searches are a violation of the Fourth Amendment “right of the people to be secure in their person, houses, papers, and effects, against unreasonable searches and seizures.” They believe that the conducted searches are not reasonable.
For your consideration:
- Do you think the searches in New York and Florida are an effective deterrent to terrorists? Why or why not?
- Do you believe the pat downs and subway searches are “unreasonable?” Why or why not?
- Should recent terrorist attacks effect the interpretation of “unreasonable?” If so, why? If not, why?
- Are the following situations constitutional?
- Concert-goers must walk past drug-sniffing dogs.
- Visitors to an amusement park must allow police to inspect their bags.
- Students walk through metal detectors to enter their school building.
- Airline passengers must remove their shoes and submit to a random search.
Current Event Scenario #3—Warrantless Wiretapping
Partially excerpted from the Bill of Rights Institute:
Newspaper reports revealed that the Bush Administration has been conducting secret, warrantless surveillance on individuals residing in the United States. The President says the wiretaps are legal, while members of Congress claim that they are unconstitutional. According to Attorney General Alberto Gonzales, that after the September 11, 2001 terrorist attacks, wiretaps on U. S. residents with links to al Qaeda became necessary to protect the nation from further harm. Furthermore, the President states that Congress gave this authority to the administration when they authorized the use of military power to the White House after the September 11, 2001 terrorist attacks. Some members of Congress argue that the warrantless wiretaps violate the people’s constitutional right to be “secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” They also state that they never gave the President the authority to conduct warrantless surveillance.
For your consideration:
- Are there any times when warrantless wiretaps might be necessary? Explain your answer.
- Is warrantless surveillance reasonable in a time of war?
- Would you be willing to allow the government to read your emails or listen to your phone conversations if it prevented a future terrorist attack? Why or why not?
Handout #4– Privacy Issues for High School Students
Supreme Court of the United States’ Rulings in Key Cases
Case #1–New Jersey v. T.L.O., 469 U.S. 325 (1985).
The Supreme Court of the United States held that the Fourth Amendment‘s prohibition on unreasonable searches and seizures applies to searches conducted by public school officials, and is not limited to searches carried out by law enforcement officers. Nor are school officials exempt from the Amendment’s dictates by virtue of the special nature of their authority over schoolchildren. In carrying out searches and other functions pursuant to disciplinary policies mandated by state statutes, school officials act as representatives of the State.
Schoolchildren have legitimate expectations of privacy. They may find it necessary to carry with them a variety of items, and there is no reason to conclude that they have necessarily waived all rights to privacy in such items by bringing them onto school grounds. But striking the balance between schoolchildren’s legitimate expectations of privacy and the school’s equally legitimate need to maintain an environment in which learning can take place requires some easing of the restrictions to which searches by public authorities are ordinarily subject. Thus, school officials need not obtain a warrant before searching a student who is under their authority. Moreover, school officials need not be held subject to the requirement that searches be based on probable cause to believe that the subject of the search has violated or is violating the law. Rather, the legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search. Under ordinary circumstances, the search of a student by a school official will be justified at its inception where there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school.
Under the above standard, the search in this case was not unreasonable for Fourth Amendment purposes. First, the initial search for cigarettes was reasonable. The report to the Assistant Vice Principal that respondent had been smoking warranted a reasonable suspicion that she had cigarettes in her purse, and thus the search was justified despite the fact that the cigarettes, if found, would constitute “mere evidence” of a violation of the no-smoking rule. Second, the discovery of the rolling papers then gave rise to a reasonable suspicion that respondent was carrying marihuana as well as cigarettes in her purse, and this suspicion justified the further exploration that turned up more evidence of drug-related activities.
Case #2 VERNONIA SCHOOL DISTRICT v. ACTON, 515 U.S. 646 (1995).
The Court held as follows:
- Requiring a student to submit to a urine test is a search within the meaning of the Fourth Amendment.
- An individual’s right to privacy must be balanced against the school’s interest in curbing illegal during use among the student body.
- The state, as the schoolmaster of school-age children, may exercise greater supervision over school children than it can over adults.
- Students do not leave their constitutional rights at the school door; therefore, any search or seizure must be considered reasonable.
- School children have a lesser expectation of privacy than free adults in that they are required to have physical examination and vaccinations in order to attend school.
- Student athletes have an even lesser expectation of privacy in light of the fact that they often undress in open locker rooms.
- As to the balancing test, the privacy interests involved with urine testing are minimal compared to the school’s interest in curbing the use of illegal drugs among the students.
- Student athletes have a greater potential to harm themselves and otherwise while using illegal drugs.
- In the Vernonia School District, the results of the drug test would be kept confidential and not turned over to the authorities.
Religion and Public Schools
Constitution Day Considerations
- To introduce students to the free exercise and establishment clauses of the First Amendment.
- To introduce students to various policies that have evolved dealing with religion and the public schools.
- To introduce students to the various Supreme Court cases dealing with the Free Exercise and Establishment Clauses as they relate to public schools..
- To stimulate discussion that will lead to questions for the panelists for The Missouri Bar Constitution Day Program.
- Begin with reading the First Amendment and noting the two parts that pertain to religion. (Handout #1—Religion and Public Schools).
- Discuss the two parts—commonly called the Free Exercise and Establishment Clauses. Why would the Framers of the Constitution be particularly interested in including both of these in the Bill of Rights?
- Some background is necessary to understanding how the subject of religion and public schools has become such a “hot button” topic when there is nothing in the First Amendment to suggest it has anything to do with public schools.
- Ask the students if they see anything in the First Amendment that would prohibit a public school from allowing religious practices at school. Draw the students’ attention to the words, “Congress shall make no law. . .”
- Ask the students if they know why these words have been construed to mean that a public school, as well as Congress, may not do anything respecting a particular religion or prohibiting the free exercise of religion.
- Explain to the students that the Fourteenth Amendment made the Bill of Rights applicable to all state and local governments and that public education is a function of both state and local governments, and generally all public schools receive federal funding, too.
- Discuss how the Establishment Clause and Free Exercise clauses could possibly be in conflict with each other in some situations.
- As a class, go through Handout #2—Religion and Public Schools, which gives a short history of the Supreme Court cases dealing with religion in schools and a good time line for seeing how this issue has evolved in the last sixty years.
Instructional note: Although, the Everson case is the earliest Establishment Clause case regarding schools (1947), beginning in 1962 with the Abington and Engle cases, is when the Court began down a twenty year path of strict separation of church and state when it came to public schools. In recent years, there has been a somewhat less restricted view by the Court.
Instructional note: Students may feel, after discussing the various cases that it is difficult to determine exactly what violates the Establishment Clause and what does not in public schools and other public places. They would join the ranks of constitutional scholars and veteran court observers in making this observation.
- During President Clinton’s administration, religious groups came together to formulate guidelines on religion in the public schools. The First Amendment Center and the Freedom Forum published the guidelines and since then have continued to refine these guidelines. These guidelines and many other excellent publications on this topic are available for free at www.firstamendmentcenter.org . Handout #3—Religion and the Public Schools contains some of these guidelines and provide a good background for the students discussing the exercises in Handout #4.
- Handout #4—Religion and the Public Schools provides students with a number of court cases and hypothetical situations to discuss and to aid them in formulating questions for the Constitution Day panel. Handout #5—Religion and the Public Schools gives the holdings in the Court cases in Handout #4.
- The theme in all cases dealing with high school students and various constitutional issues is the tension between protecting the students’ constitutional rights and the school being allowed to do what it needs to protect all of its students and to maintain an effective educational climate.
Extension and enrichment:
- The Missouri General Assembly and the Congress of the United States begin every session with prayer. Do these practices by a public body violate the Establishment Clause? See Marsh v. Chambers, 463 U.S. 783 (1983).
- Discuss other public places than public schools where the Establishment Clause has been at issue. For example, nativity scenes on courthouse lawns, the Ten Commandments in courthouses and on courthouse lawns. See the following for further discussion:
- Lynch v. Donnelly, 465 U.S. 668 (1984). Nativity scene on city hall grounds did not violate Establishment Clause as there was also secular items—Santa Clause and reindeer so the nativity scene was part of a traditional, non-religious display.
- Allegheny County v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573 (1989). A nativity scene and Jewish menorah on display in the county courthouse improperly promoted Christianity and Judaism and violated the Establishment Clause.
- Van Orden v. Perry (2005). Ten Commandment display on Texas’ state capitol grounds in Austin deemed not violating the Establishment Clause because it is one of many commemorative displays.
- McCreary County, Kentucky v. ACLU of Kentucky (2005). Framed copies of the Ten Commandments in two locations in the courthouse violate Establishment Clause.
- Explore the history of the “under God” portion of the Pledge of Allegiance. When was this added? Why was it added? What group sponsored the legislation to add it? Do you think there are any Establishment Clause issues with having this in the Pledge? How is it any different from having “In God We Trust” on our money.
Handout #1—Religion and the Public Schools
THE FIRST AMENDMENT
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Handout #2—Religion and Public Schools
United States Supreme Court Cases and Religion in Public Schools
1940 Minersville School District v. Gobitis, 310 U.S. 586 (1940). The Court ruled that the school district’s policy that every child, without exception, must salute the flag as part of the opening exercises for every school day did not violate the Gobitis family First Amendment right to free exercise of religion, although such practice was prohibited by the Jehovah Witnesses, the Gobitis religion. (This was reversed in West Virginia v. Barnette, which is below.)
1943 West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943). The Court held that requiring students who were Jehovah Witnesses to salute the flag and say the Pledge of Allegiance, which was contrary to their religious beliefs, violated their First Amendment right to free exercise of their religion.
1947 Everson v. Board of Education of Ewing Township, 330 U.S. 1 (1947). The Court held that transporting Catholic school students to their parochial schools on public school buses did not violate the Establishment Clause because providing transportation has no religious purpose.
1952 Zorach v. Clauson, 343 U.S. 306 (1952). The Court ruled that there was no Establishment Clause violation for public schools to allow “release time”—allowing students to leave school early on one day to attend religious instruction at their churches.
1962 Engel v. Vitale, 370 U.S. 421(1962). The Court held that a non-denominational prayer that the New York State School Board created and recommended to be prayed in each classroom everyday violated the Establishment Clause.
1963 Abington v. Schemp, 374 U.S. 203 (1963). The Court held that Pennsylvania’s requirement that each public school day must be started with a reading of ten verses from the Bible violated the Establishment Clause. This case also set the standard in future cases (until Lemon v. Kurtzman) as to how to determine if the Establishment Clause has been violated—if the state’s law or the school’s policy advanced or inhibited religion and there was no secular (non-religious) purpose, then the Establishment Clause has been violated.
1970 Stone v. Graham, 449 U.S. 39 (1980). The Court held that the requirement that the Ten Commandments be posted in every classroom violated the Establishment Clause.
1971 Lemon v. Kurtzman,403 U.S. 62 (1971). The Court held that Pennsylvania’s law allowing state money to support the salaries of parochial school teachers and allowing state money to buy text books for parochial school books violated the Establishment Clause. The Court agreed that salaries and textbooks do not have a religious purpose but came up with a three part test (became known as the Lemon test) to determine if there is a violation of the Establishment Clause, replacing the standard set in Abington v. Schemp:
- The law or policy must have a secular purpose.
- The law or policy must not interfere with religion.
- The law or policy must not cause excessive government entanglement with religion.
The Court held that a law or statute must meet all three parts to be constitutional. From this time until the case of Agostini v. Felton (see below) in 1997, the Court consistently found that any government funding to parochial institutions, even if it were secular in purpose, was “excessive government” entanglement.
1985 Wallace v. Jaffree, 427 U.S. 38 (1985). The Court held that Alabama’s state statute allowing for teacher or student led prayer in the classroom for “willing” students violated the Establishment Clause.
1985 Aguilar v. Felton, 473 U.S. 472 (1985). The Court held that providing remedial teachers, who were paid by federal funds, to parochial schools violated the Establishment Clause. This was reversed in 1997 in the Agostini v. Felton case.
1990 Board of Education of Westside Community Schools v. Mergens, 496 U.S. (1990).
The Court held that the school could not deny the students the right to form a religious club when they allowed other after school hours clubs and to do so would violate the Equal Access Act and that the Equal Access Act as applied to religious clubs does not violate the Establishment Clause.
1992 Lee v. Weisman, 505 U.S. 577 (1992). The Court held that graduation prayer, arranged by school officials, violates the Establishment Clause. However, a year later the Court chose not to hear a case from Texas where the lower courts held that the students volunteering to lead prayer at graduation did not violate the Establishment Clause. Since the Court did not take the case, the lower courts’ rulings stand as law.
1993 Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384 (1993). The Court held that the school’s refusal to allow a church to use its facilities after the school day was over violated the church members free exercise of religion, especially in light of the fact that other community groups were allowed to use the school.
1993 Zobrest et al. v.Catalina Foothills School District, 509 U.S. 1 (1993). The court ruled that hearing impaired students at a parochial school could be assisted by a publicly-funded sign-language interpreter.
1994 Board of Education of Kiryas Joel Village School District v. Grumet, 114 S.Ct.2041 (1994). New York Village Kiryas Joel is a religious enclave of Satmar Hasidim, practitioners of a strict form of Judaism. Its incorporators intentionally drew its boundaries under the state’s general village incorporation law to exclude all but Satmars. The village fell within the Monore Woodbury Central School District until a special state statute carved out a separate district that follows village lines. The school district in the village serves only special needs children as all other children attend private schools. The Court held that allowing Kiryas Joel Village to have its own school when special services are available in neighboring districts crosses the line of favoring a religious sect and, thus, violates the Establishment Clause.
1997 Agostini. v.Felton, 521 U.S. 203 (1997). Reverses Aguilar v. Felton by saying it does not violate the Establishment Clause to provide federal remedial education programs to parochial school students. This case also partially overrules Lemon v. Kurtzman in that the Court holds that if any of the three tests in Lemon can be met, then there is not Establishment Clause violation. In this case, the Court found that providing remedial education has a “secular” purpose and that it did not “interfere with religion.” Thus, they did not have to analyze whether “excessive government entanglement” was an issue. This is the current test.
2002 Zelman, Supt. Of Pub. Instr. v.Simmons-harris, Doris, Et Al, 536 U.S. 639 (2002). The Court held that Cleveland, Ohio’s voucher program—allowing public school students to get money from the state to attend a Catholic school if they so opted—did not violate the Establishment Clause because providing a good education is a secular purpose, not a religious one.
Other significant cases since 2000 are the contained in Handout #4—Religion and the Public Schools.
Handout #3—Religion and Public Schools
Guidelines for Religion in the Public Schools
(Information provided by the First Amendment Center and the Freedom Forum)
- Public schools may not promote or inhibit religion. They must be places where religion and religious convictions are treated with respect.
- Students may express their faith at school and may ask others to pray with them or read Scriptures, the Koran or other religious materials, but a teacher may not lead these activities and schools may set time and place limits on these activities as they would any activity.
- The school must not allow a student to coerce or harass other students about religion.
- Voluntary, student led prayer at the flagpole or in another location acceptable to school officials is permissible as long as it is not disruptive or teacher or school official lead the activity.
- The school’s approach to religion must be academic, not devotional.
- The school may strive for student awareness of religions, but should not press for student acceptance of any one religion.
- The school may sponsor study about religion, but may not sponsor the practice of religion.
- The school may expose students to a diversity of religious views, but may not impose any particular view.
- The school may educate about all religions, but may not promote or denigrate any religion.
- The school may inform the students about various beliefs, but should not seek to conform them to any particular belief.
- If some part of the school curriculum conflicts with a student’s religious beliefs, every effort should be made to allow excusal for the student from those lessons that interfere with his/her beliefs. If at all possible, the student should be provided with alternative activities in order for the school to strike a balance between the student’s free exercise of religion and the school’s interest in providing a well rounded education.
- If the school allows other noncurriculum related clubs to meet in the school in non-instructional time, under the federal government’s Equal Access Act, religious clubs must be allowed to meet in the school.
- Students should be allowed to wear religious garb and symbols as long as they are not disruptive.
- Students may distribute religious literature subject to the school’s time, place and manner restrictions. If the school does not allow the distribution of any literature from outside sources, it may also restrict distribution of religious materials.
RELIGIOUS HOLIDAYS AND THE PUBLIC SCHOOL
Religious holidays offer opportunities to teach about religion in elementary and secondary schools. Teaching about religious holidays, which is permissible, is different from celebrating religious holidays, which is not. The study of holidays serves academic goals of educating students about history and cultures as well as about the traditions of particular religions.
The use of religious symbols as examples of religious or cultural heritage is permissible as a teaching aid or resource. Religious symbols should only be displayed on a temporary basis as part of the academic program.
Sacred music may be sung or played as part of a school’s academic program. School concerts that present a variety of selections may include religious music. The use of music, art, drama, or literature with religious themes is permissible if it serves a sound educational goal in the curriculum, but not if used as a vehicle for promoting religious belief.
Handout #5—Religion and Public Schools
Decisions in Recent Court Cases
(Excerpted from the actual opinions.)
Santa Fe Independent School Dist. v. Doe, 530 U.S. 290 (2000)
The District’s policy permitting student-led, student-initiated prayer at football games violates the Establishment Clause. The Court’s analysis is guided by the principles endorsed in Lee v. Weisman, 505 U.S. 577 . There, in concluding that a prayer delivered by a rabbi at a graduation ceremony violated the Establishment Clause, the Court held that, at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way that establishes a state religion or religious faith, or tends to do so. The District argues unpersuasively that these principles are inapplicable because the policy’s messages are private student speech, not public speech. The delivery of a message such as the invocation here-on school property, at school-sponsored events, over the school’s public address system, by a speaker representing the student body, under the supervision of school faculty, and pursuant to a school policy that explicitly and implicitly encourages public prayer-is not properly characterized as “private” speech. The process for choosing who delivers the prayers clearly favors one religion over others. The majoritarian process implemented by the District guarantees, by definition, that minority candidates will never prevail and that their views will be effectively silenced. The District’s argument that there is no coercion here because attendance at an extracurricular event, unlike a graduation ceremony, is voluntary is unpersuasive. For some students, such as cheerleaders, members of the band, and the team members themselves, attendance at football games is mandated, sometimes for class credit. The District’s argument also minimizes the immense social pressure, or truly genuine desire, felt by many students to be involved in the extracurricular event that is American high school football. The Constitution demands that schools not force on students the difficult choice between whether to attend these games or to risk facing a personally offensive religious ritual.
Mitchell v. Helms, 530 U.S. 793 (2000)
Applying the two relevant Agostini criteria (whether the program has a secular purpose or whether it interferes with religion) reveals that there is no basis for concluding that Jefferson Parish’s Chapter 2 program has the effect of advancing religion. First, Chapter 2 does not define its recipients by reference to religion, since aid is allocated on the basis of neutral, secular criteria that neither favor nor disfavor religion, and is made available to both religious and secular beneficiaries on a nondiscriminatory basis. There is no improper incentive because, under the statute, aid is allocated based on school enrollment. Second, Chapter 2 does not result in governmental indoctrination of religion. It determines eligibility for aid neutrally, making a broad array of schools eligible without regard to their religious affiliations or lack thereof.
Good News Club, et al. v.Milford Central School, 533 U.S. 98 (2001)
Permitting the Club to meet on the school’s premises would not have violated the Establishment Clause. The Club’s meetings were to be held after school hours, not sponsored by the school, and open to any student who obtained parental consent, not just to Club members. Milford made its forum available to other organizations. The Court rejects Milford’s statement that its policy involves elementary school children who will perceive that the school is endorsing the Club and will feel coerced to participate because the Club’s activities take place on school grounds, even though they occur during nonschool hours. That argument is unpersuasive for a number of reasons. (1) Allowing the Club to speak on school grounds would ensure, not threaten neutrality toward religion. Accordingly, Milford faces an uphill battle in arguing that the Establishment Clause compels it to exclude the Club. (2) To the extent the Court considers whether the community would feel coercive pressure to engage in the Club’s activities, the relevant community is the parents who choose whether their children will attend Club meetings, not the children themselves. (3) Whatever significance it may have assigned in the Establishment Clause context to the suggestion that elementary school children are more impressionable than adults, the Court has never foreclosed private religious conduct during nonschool hours merely because it takes place on school premises where elementary school children may be present. (4) Even if the Court were to consider the possible misperceptions by schoolchildren in deciding whether there is an Establishment Clause violation, the facts of this case simply do not support Milford’s conclusion. Finally, it cannot be said that the danger that children would misperceive the endorsement of religion is any greater than the danger that they would perceive hostility toward the religious viewpoint if the Club were excluded from the public forum.