Bill of Rights Notes AGGI Lesson Plan 2 Bill of Rights

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The Bill of Rights
What, Why and When
• Introduced by James
Madison in 1789.
• Adopted in 1791.
• First 10 amendments to the
Constitution.
• Guarantees individual rights
and protections.
• States what government
CAN NOT do to people.
• Influenced by Magna Carta,
English Bill of Rights,
Virginia Declaration Rights.
Amendment I
Freedom of Religion, Speech, Press,
Assembly, Petition
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.
Amendment I
• Also referred to as Freedom of Expression!
Amendment I
• Establishment of religion;
• Free exercise of religion;
• Freedom of speech;
• Freedom of press;
• Peaceably assemble;
• Petition the government.
Amendment I
Right to Assemble
WTO 1999 Seattle, Washington
World Trade Organization
Protestors –vs.- Police
Amendment I
Right to Assemble
Amendment I
Right to Assemble
Amendment I
Right to Assemble
Amendment I
Right to Assemble
Amendment I
Right to Assemble
Amendment I
Right to Assemble
Amendment I
Right to Assemble
Amendment I
Right to Assemble
Amendment I
Right to Assemble
Amendment I
Right to Assemble
Amendment I
Right to Assemble
• Controversy over the city's response to the protests resulted
in the resignation of Seattle police chief Norm Stamper.
• On January 16, 2004, the city settled with 157 individuals
arrested outside of the no-protest zone during the WTO
events, agreeing to pay them a total of $250,000. On January
30, 2007, a federal jury found that the City of Seattle had
violated protesters‘ constitutional rights by arresting them
without probable cause or hard evidence.
• The massive size of the protest pushed the city of Seattle $3
million over their estimated budget of $6 million, partly due to
city cleanup and police overtime bills. In addition, the damage
to commercial businesses from vandalism and lost sales has
been estimated at $20 million.
Establishment Clause
&
Free Exercise Clause
“Freedom of Religion”
Establishment Clause
and
Free Exercise Clause
• Establishment Clause – Government may
not establish an official religion
• Free Exercise Clause – Government is
prohibited from interfering with religious
beliefs and practices within limits.
Establishment Clause
&
Free Exercise Clause
• Parochial – religious
• Secular – non-religious
• Freedom of thought – (not limited)
• Freedom of action – (limited)
• Separation of Church & State – “Very Gray”
Establishment Clause
&
Free Exercise Clause
• Compelling state interest – Very important
legal standards that allows the government
to burden religious practices if found
unsafe.
(safety, national security, saving multiple lives)
Establishment Clause
http://www.youtube.com/watch?v=xADKtEHjixI
Establishment Clause
• Abington v. Schempp (1956) – prayer
• Engel v. Vitale (1962) – Official school
prayer
• Lynch v. Donnelly (1984) – holiday display
including “Season Greetings”, Santa, or a
tree.
Abington Township School District
vs.
Schempp
• 1956, 16-year-old Ellery Schempp
protested school's mandatory prayer.
• Ejected from class.
• Sued the school district.
• Supreme Court banned school-sponsored
school prayer.
Free Exercise Clause
• Five Cases:
– West Virginia Board of Ed v. Barnette (1943)
– Welsh v. U.S. (1970)
– State of Wisconsin v. Yoder (1972)
– Oregon Employment Division v. Smith (1990)
– Church of Lukumi Babalu v. Hialeah (1993)
– West Virginia Board of Ed v. Barnette: 6-3
The Free Speech Clause protects students from being forced to salute
the flag
– Welsh v. U.S.: 5-3
The term religion is broad and can apply to even objectors not affiliated
with a church or a common religious faith.
– Yoder vs. State of Wisconsin: 7-0
Individual rights outweighed the state interests according to the Free
Exercise Clause.
– Oregon Employment Division v. Smith: 6-3
Oregon could deny unemployment benefits to a person fired for the use
of peyote even though the use of the drug was part of religious ritual.
– Church of Lukumi Babalu v. Hialeah: 9-0
The city was found in violation of the Free Exercise Clause. The church
could practice as they pleased.
Amendment I
Freedom of Speech
http://www.youtube.com/watch?v=u7ZeF5Dl
Uok
Flag Burning
What are your thoughts on flag
burning as a part of American’s
freedom of expression?
Do you believe the 1,000,000+
soldiers that have been killed in
American wars died so people
would have the right to burn the
flag?
Freedom of Speech
Tinker v Des Moines (1969)
.
• John Tinker (15) and Beth Tinker (13) along with some
of their friends wore black arm bands to protest the
Vietnam War
• They were all suspended from school.
Amendment I
Freedom of “Expression”
First Amendment applies to schools.
Reason not constitutionally valid to regulate
speech.
Tinker test – does school’s disciplinary action
violate student’s 1st Amendment rights?
Distinction – Does it interrupt the educational
process?
Amendment I
Violations of Free Expression
• Tinker was all about freedom of expression.
– Students merely wore black arm bands.
– They did not disrupt school activities in any other
way.
– The actions of the students are often used to
distinguish the right of speech and expression for
students from the rules that can govern those
rights.
– The distinction hinges on the impact of the
expression on the educational process.
Amendment I
Violations of Free Expression
Dress codes that prohibit certain kinds of dress
have not been challenged at the level of the
Supreme Court, but have generally been upheld as
promoting the educational process.
Amendment I
Violations of Free Expression
Cohen v California (403 US 15 [1971])
• Court overturned a conviction of a man who wore a
jacket with the words "F___ the Draft" on it.
• Court ruled that the presence of a printed vulgarity
cannot be sufficient cause for an arrest and 30-day
imprisonment.
Amendment I
Violations of Free Expression
Cohen v California (403 US 15 [1971])
• “Absent a more particularized and compelling
reason for its actions, the State may not,
consistently with the First and Fourteenth
Amendments, make the simple public display here
involved of this single four-letter expletive a criminal
offense.“
• Cohen was not a student and the jacket was not
displayed in a school.
Amendment I
Violations of Free Expression
New Rider v Board (414 US 1097 [1973])
• Two male Pawnee Indian
students were suspended
from school for wearing
long hair in the tradition of
their ancestors.
• The suspension was for
violation of a school rule
which forbade the wearing
of hair that extended past
the collar or ears.
Amendment I
Violations of Free Expression
New Rider v Board (414 US 1097 [1973])
The Court refused to hear the case, but Supreme Court
Justices Douglas and Marshall both wrote a very harsh
criticism of the school rule.
Amendment I
Violations of Free Expression
New Rider v Board (414 US 1097 [1973])
"Petitioners were not wearing their hair in a desired
style simply because it was the fashionable or
accepted style, or because they somehow felt the
need to register an inchoate discontent with the
general malaise they might have perceived in our
society.
They were in fact attempting to broadcast a clear and
specific message to their fellow students and others
- their pride in being Indian."
Amendment I
Violations of Free Expression
Morse v Frederick (06-278 [2007])
• Student speech off campus can be suppressed by
school administrators if the speech promotes illegal
activity
• Student erected a banner along the Olympic torch
route. The route was flanked by students from his high
school. Principal saw the banner, had it removed and
suspended students because the banner ran counter
to the school's anti-drug themes and policies.
Amendment I
Violations of Free Expression
Morse v Frederick (06-278 [2007])
"Student speech celebrating illegal drug use at a
school event, in the presence of school administrators
and teachers, thus poses a particular challenge for
school officials working to protect those entrusted to
their care from the dangers of drug abuse."
The Bill of Rights
Public school students do not set aside their
constitutional rights - the Court uses a balancing test.
Board v Barnette
(319 US 624 [1943])
Supreme Court ruled
that students could
not be forced to
salute the flag
against their will.
Amendment I
Violations of Free Speech
Bethel School v Fraser (1986) –
Senior Matthew Fraser of Spanaway, Washington gave a
suggestive nomination speech. Matthew Fraser was
suspended and not allowed to speak at his graduation.
The Supreme Court ruled that a school was not violating
a students rights when it suspended a student for the
use of crude language in a speech to a school
assembly.
Supreme Court upholds discipline – violation of school
policy against disruptive behavior.
Amendment I
Violations of Free Press
• The Supreme Court has
held that schools and
school administrators
can censor student
publications such as
student newspapers.
• Difference between
tolerance of expression
and promotion of
student views is the key.
• By wearing an arm band,
a student is expressing
his view and the school
is not taking a stand, nor
endorsing the student.
Amendment I
Violations of Free Press
• In Hazelwood School v
Kuhlmeier (484 US 260
[1988])
• Supreme Court ruled articles
in the school paper that
were counter to the
educational mission of the
school were subject to
censorship.
Amendment I
Violations of Free Press
Though untested in court, it is probably true that
students are protected in publication of
"underground" newspapers, and perhaps web pages,
but the distribution of those papers or use of school
computers to view web pages could be restricted.
The Bill of Rights
Exceptions
Generally, the
Constitution applies
equally to everyone,
regardless of age,
color, race, religion,
or other factors.
The Bill of Rights
Exceptions for Minors
• Some rights can be
suppressed because
of:
– Immaturity
– Children attending
school
The Bill of Rights
Exceptions for Minors
• In loco parentis - while
a student is in the
custody of a school, the
school can and often
should act as a parent.
• Goal to Educate. If an
act of a student can
interfere with the
educational process,
that act may, in many
cases, be suppressed.
The Bill of Rights
Marketplace of Ideas
The court has recognized
the importance of the free
flow of ideas in schools:
"The classroom is peculiarly
the 'marketplace of ideas.' The
Nation's future depends upon
leaders trained through wide
exposure to that robust
exchange of ideas."
Keyishian v Board of Regents 1967
The Bill of Rights
Private Schools not Subject to Restrictions
• Public schools only. Private schools are
not subject to any restrictions in terms of
violations of the rights of students.
Amendment II
Right to Bear Arms
A well regulated militia, being necessary to
the security of a free state, the right of the
people to keep and bear arms, shall not be
infringed.
District of Columbia v. Heller
(2008)
• Can D.C. ban private possession of
handguns?
• Supreme Court voted 5-4 to strike down
ban.
• 2nd Amendment does establish the
individual right to keep and bear arms for
hunting and self-defense.
• However, recognized that Government can
regulate gun rights.
Amendment III
Quartering
No soldier shall, in time of peace be
quartered in any house, without the consent
of the owner, nor in time of war, but in a
manner to be prescribed by law.
Amendment III
• Relevance: Right to Privacy.
• “A man’s house is his castle.
Amendment IV
Search and Seizure
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.
Amendment IV
• Unreasonable search and seizures;
• Warrants
• Probable Cause
• Due Process!
• Rights to Privacy!
Amendment IV
Search and Seizure
• Restricts police from
stopping and searching you
without probable cause.
• Rules apply differently to
schoolchildren.
• School officials are free to
search a student if there is
evidence that the student
committed a crime or
violated a school rule, and
if the search is reasonable
at the outset and
reasonably limited in scope.
Amendment IV
Violations of Search and Seizure Protections
More and more schools
are searching the
contents of student
lockers, bags, and of
their persons.
New Jersey v TLO (469
US 325 [1985])
A search of a student's
purse to find cigarettes
the student was
suspected of smoking
on school grounds was
upheld.
Amendment IV
Violations of Search and Seizure Protections
Reaffirmed the role of the school in loco parentis
Recognized that school officials are representatives of
the State.
• Rules were established for
searches
• Reasonableness
• Not excessively intrusive
• Related to the offense that is
being investigated.
Amendment IV
Violations of Search and Seizure Protections
• Urine tests of student athletes were upheld in Vernonia
School v Acton (1995)
• Justification for Testing:
– in loco parentis
– a lowered expectation of privacy for athletes
– need for deterrence of drug use, particularly among
athletes
Amendment IV
Violations of Search and Seizure Protections
"Fourth Amendment rights, no less than First and
Fourteenth Amendment rights, are different in public
schools than elsewhere; the "reasonableness" inquiry
cannot disregard the schools' custodial and tutelary
responsibility for children.“
Supreme Court
There have been no reviews of cases of locker searches
by the Supreme Court, most likely because the locker,
while possibly containing personal property of the
student, is itself the property of the school.
Amendment V
Due Process
Double Jeopardy
Self-Incrimination
No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment or
indictment of a grand jury, except in cases arising in the
land or naval forces, or in the militia, when in actual
service in time of war or public danger………..
Amendment V
Due Process
Double Jeopardy
Self-Incrimination
…….nor shall any
person be subject for the
same offense to be twice
put in jeopardy of life or
limb; nor shall be
compelled in any
criminal case to be a
witness against himself,
nor be deprived of life,
liberty, or property,
without due process of
law; nor shall private
property be taken for
public use, without just
compensation.
Amendment V
• Grand Jury;
• Double Jeopardy;
• Self incrimination;
• Due process;
• Just compensation
Amendment VI
Rights in Criminal Prosecutions
……and to be informed of the nature and cause of
the accusation; to be confronted with the witnesses
against him; to have compulsory process for
obtaining witnesses in his favor, and to have the
assistance of counsel for his defense.
Amendment VI
• Speedy and public trial;
• Impartial jury;
• Informed of the nature of accusations;
• Confronted (and obtain) witnesses;
• Assistance of Counsel
Amendment VII
Right to a Jury Trial in a Civil Case
In suits at common law,
where the value in
controversy shall
exceed twenty dollars,
the right of trial by jury
shall be preserved, and
no fact tried by a jury,
shall be otherwise
reexamined in any court
of the United States,
than according to the
rules of the common
law.
Amendment VIII
Cruel or Unusual Punishments
Excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments
inflicted.
Amendment VIII
• Excessive bail;
• Excessive fines;
• Cruel and unusual punishment
Cruel and Unusual Punishment
• Lethal Injection: Cruel and Unusual?
• Unnecessary risk of pain and suffering?
• 1/2008: V. Kentucky case
• 36/37 death penalty states use it
• 1878 Court upheld death by firing squad
Amendment IX
Rights Retained by the People
The enumeration in the Constitution, of certain rights,
shall not be construed to deny or disparage others
retained by the people.
Amendment IX Interpretations
• Impossible to list all the rights and liberties.
• BoR does not increase powers of the
national government or impose any
limitations on the national government.
• Judges and Congress need to affirm rights
not mentioned in the Constitution.
Amendment X
Rights to the States
The powers not
delegated to the United
States by the
Constitution, nor
prohibited by it to the
states, are reserved to
the states respectively,
or to the people.
Amendment X Interpretations
• States the nature of American federalism
but adds nothing to the Constitution as
ratified.
• Protects the powers of states against the
national government.
Brown v. Board of Education
• Prior to the 1950s,
African Americans
were still barred
from attending many
public schools solely
on racial grounds.
• Held that the
"separate but equal"
policy was inherently
unequal.
Brown v. Board of Education
• Follow-up ruling the
next year, the justices
ordered that schools
were to be
desegregated "with all
deliberate speed.“
• Notwithstanding the
ruling, school
desegregation suits
continue to crop up
from time to time.
May 17, 1954
“In the field of public education, the doctrine of
‘separate but equal’ has no place. Separate educational
facilities are inherently unequal.”
- Chief Justice Earl Warren
Educational Influence: The United States Supreme Court
ruled unanimously that separating black and white
children in public schools was unconstitutional.
1957
“It wasn’t that we wanted our children to go to school
with white children. That was not the gist of it at all. We
wanted our children to have a better and equal
education, which we knew that they were not getting.”
-Vivian Scales, Parent
Plaintiff in Brown vs. Board of Education
1964 – Civil Rights Act
“I have a dream that
my four little children
will one day live in a
nation where they will
not be judged by the
color of their skin but
by the content of their
character.”
-Martin Luther King
Parents Involved in Community Schools
v. Seattle School District No. 1
Seattle School District
• Allowed students to apply to any high school in the
District.
• Used a system of tiebreakers to decide which
students would be admitted to the popular schools.
• The second most important tiebreaker was a racial
factor intended to maintain racial diversity.
Parents Involved in Community Schools
v. Seattle School District No. 1
• If the racial demographics of any school's student
body deviated by more than a predetermined number
of percentage points from those of Seattle's total
student population (approximately 40% white and
60% non-white), the racial tiebreaker went into effect.
Parents Involved in Community Schools
v. Seattle School District No. 1
• At a particular school either whites or non-whites
could be favored for admission depending on which
race would bring the racial balance closer to the
goal.
• A non-profit group, Parents Involved in Community
Schools (Parents), sued the District, arguing that the
racial tiebreaker violated the Equal Protection Clause
of the Fourteenth Amendment as well as the Civil
Rights Act of 1964 and Washington state law.
Parents Involved in Community Schools
v. Seattle School District No. 1
Prohibits the use of race as the sole factor in order to
integrate public schools and declined to recognize
racial balancing as a compelling state interest
Parents Involved in Community Schools
v. Seattle School District No. 1
In a fragmented opinion
delivered by Chief Justice
John Roberts, five justices
held that the School
Boards did not present
any "compelling state
interest" that would justify
the use of race for school
seat assignments.
Parents Involved in Community Schools
v. Seattle School District No. 1
• In order to survive strict scrutiny analysis, a narrowly
tailored plan must be presented in order to achieve a
"compelling state interest."
• Prior Supreme Court cases had recognized two
compelling interests for the use of race.
• First, to remedy the effects of past intentional
discrimination. Seattle schools had never been
segregated by law, therefore they could not raise that
interest.
Parents Involved in Community Schools
v. Seattle School District No. 1
• The second compelling state
interest is the goal of
achieving a diverse student
body in higher education.
This diverse body is not
defined only by having a
great number of racially
diverse students but by also
considering other factors
beside race.
• The plans at issue in this
case do not use race as an
assessment for broader
diversity, instead, they use
solely race as a factor for
assigning students to
different schools.
Parents Involved in Community Schools
v. Seattle School District No. 1
• Roberts concludes that
there are other factors
besides race that can be
used to achieve compelling
state interest. The fact that
the plans at issue in this
case did not attempt to use
any other of these
mechanisms makes them
constitutionally flawed
because they are not
narrowly tailored.
Parents Involved in Community Schools
v. Seattle School District No. 1
Associate Justice Anthony Kennedy did not join the rest
of the opinion by the Chief Justice, therefore, those
parts of the opinion did not command a majority. In this
Plurality Opinion, Roberts wrote that the Schools at
issue contend that a racially diverse environment is
beneficial for education and they submit this as the
reason why they consider race alone in their school
assignments. However, Roberts considers that this
interest is not compelling and that the use of race for
this goal is not narrowly tailored, it is instead used for
racial balancing, which is unconstitutional. The schools
base their numbers in demographics, therefore making
this goal a mean to achieve a numerical quota to
achieve racial balancing. Roberts concludes that racial
balancing cannot be a compelling state interest.
Parents Involved in Community Schools
v. Seattle School District No. 1
Roberts concludes his opinion for the plurality by
saying:
"The way to stop discrimination on the basis of race
is to stop discriminating on the basis of race."
Parents Involved in Community Schools
v. Seattle School District No. 1
Justice Anthony Kennedy:
Schools may use "race
conscious" means to
achieve diversity in
schools but that the
schools at issue in this
case did not use a
sufficient narrow tailoring
of their plans to sustain
their goals.
Parents Involved in Community Schools
v. Seattle School District No. 1
• Concurrence by Justice Kennedy
• Differed with the plurality because the goal of obtaining
a diverse student body is a compelling state interest.
• "Diversity, depending on its meaning and definition, is a
compelling educational goal a school district may
pursue. "
• "A compelling interest exists in avoiding racial isolation,
an interest that a school district, in its discretion and
expertise, may choose to pursue. Likewise, a district
may consider it a compelling interest to achieve a
diverse student population. Race may be one
component of that diversity, but other demographic
factors, plus special talents and needs, should also be
considered."
Parents Involved in Community Schools
v. Seattle School District No. 1
• Concurrence by Justice
Thomas
• "If our history has taught
us anything it has taught
us to beware of elites
bearing racial theories." In
a footnote the Justice
added a personal mention
of Justice Breyer: “Justice
Breyer’s good intentions,
which I do not doubt, have
the shelf life of Justice
Breyer’s tenure.”
Parents Involved in Community Schools
v. Seattle School District No. 1
• Dissent by Justice Stevens
• Accused the plurality of misusing and mis-applying previous
Supreme Court precedents
including Brown vs. Board of
Education. He concluded by
saying that the current Court has
greatly changed and that
previously
• "[i]t was [...] more faithful to
Brown and more respectful of
our precedent than it is today. It
is my firm conviction that no
Member of the Court that I joined
in 1975 would have agreed with
today's decision."
Parents Involved in Community Schools
v. Seattle School District No. 1
• Dissent by Justice Breyer
• Dismissed Justice Kennedy's
proposed alternatives to the
labeling and sorting of individual
students by race and denounced
the majority opinion.
• “It is not often in the law that so
few have so quickly changed so
much,” Justice Breyer said of the
Court's decision. He called the
ruling a "radical" step away from
established law that would take
from communities a critical tool
used for many years in the
prevention of resegregation.
Parents Involved in Community Schools
v. Seattle School District No. 1
What’s Next?
Amendment XIV, Section 1
• All persons born or naturalized in the
United States and subject to the jurisdiction
thereof, are citizens of the United States,
and of the State wherein they reside. No
State shall make or enforce any law which
shall abridge the privileges or immunities of
citizens of the United States; nor shall any
State deprive any person of life, liberty, or
property, without due process of the law;
nor deny to any person within its jurisdiction
the equal protection of the laws.
Amendment XIV
• Defines citizenship.
• Bill of Rights applies to States.
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