Lightning Case Module #004
Students and the Constitution
Author:
Dr. Dan Krutka
Wichita State University
Series Editor:
Dr. Brad Burenheide
Kansas State University
Contents
For Teachers: Overview of Lightning Case Module
3
Introduction to the Controversy
7
The Cases
8
West Virginia State Board of Education v. Barnette (1943)
Tinker v. Des Moines Independent School District (1969)
Lemon v. Kurtzman (1970)
Lee v. Weisman (1992)
Santa Fe Independent School District v. Jane Doe (2000)
Safford Unified School District v. Redding (2008)
For Teachers: More About the Cases (decisions and more)
11
Final Assessment: Reading a Professional Journal Article
13
Bibliography
14
For Teachers: Overview of Lightning Case Model
Under the ruling levied in Marbury v. Madison, the Supreme Court became
the institution in the American legal system that serves as the ultimate arbiter of
issues of constitutional law. In the opinion, Justice John Marshal noted that “the
judicial power of the United states is extended to all cases arising under the
Constitution…It is also not entirely unworthy of observation that, in declaring what
shall be the supreme law of the land, the Constitution, itself is first mentioned, and
not the laws of the United States generally, but those only which shall be made in
pursuance of the Constitution, have the rank (Marbury v. Madison, 1803).”
Under this system of judicial review, it becomes extremely important for
students to understand the rights contained with the Constitution and the
subsequent Bill of Rights as the Constitution is the ultimate law of the United
States. As precedents developed, the scope of the rights of citizens has evolved over
time. Thus, it becomes important for citizens to follow this evolution and how the
courts currently measure these rights.
As Vontz and Leming noted, the use of Supreme Court cases lend themselves
well to certain methods (Vontz & Leming, 2003). But, in this specific case, it is
important to realize that the method must be integrated with the content. Vontz
and Lemming further suggest civics educators who utilize active and participatory
strategies, analyze documents and issues, teach with relevant topics, and teach
civics content relevant to democratic citizenship can best motivate students to
acquire knowledge of citizenship. One of the means of doing this is through the
analysis of Supreme Court cases.
The case study method of court decisions can engage students in gaining key
knowledge through the analysis of important cases (McDonnell, 2002; Long, 1994).
Vontz and Leming denote however that the understanding of the “bigger topics” of
citizenship can be collected from the study of Supreme Court cases than the law
students analyzing cases for method and specific topics of study (Vontz & Leming,
2003). These cases can allow students to investigate facts, issues, arguments,
context, civic principles, and higher order thinking skills (Knapp, 1993; Leming,
1991).
While there are common strategies to dissect cases of the Supreme Court,
many of them can be heavily involved and use up a large amount of time in the
classroom. Hanna and Dettmer (2004) encourage the teacher when designing
assessments to maintain a balance between reliability, authenticity, and economy.
Reliability would be accuracy of the measurement. Authenticity deals with the realworld application of knowledge to encourage transfer of learning. Economy deals
with the use of time, effort, and energy in administering the assessment. Where
economy focuses on the great “enemy” of the teacher—time—the teacher must
consider if the strategy is the optimal and most appropriate use of time. In their
article encouraging the use of Supreme Court cases, Vontz and Leming (2003) called
for the use of Socratic seminars and moot court cases to effectively analyze the
thinking of the court, the institution of the case in an historical context, and by
taking an active role in the participating of the activity, becoming content experts of
the case. But is this the best use of time in the classroom? Does the depth of
content in this instance supersede the coverage of breadth? This study intends to
analyze this question by employing a strategy that employs a significant quantity of
cases without sacrificing the apparent quality of learning.
Description of the Model
The “Lightning Case” method discussed in this study is rooted in a sound
literature base of experiential learning. Kolb (1984) and Kolb and Lewis (1986)
provide a model for experiential learning or having students actively engaged in
testing explanatory ideas created by the student. Mukhamedyarova (2005) explored
the idea of interactive learning and evaluated five strategies commonly used.
O’Brien (2003) discussed a model for students to engage in historical prediction
making. Finally, Hess (2002) and Parker (2003) illuminated the nature of
controversial deliberation in the classroom and provided guidelines for teachers to
follow.
Through the sources cited above, a model was constructed that causes
students to be actively engaged in the analysis of cases, make predictions based
upon their knowledge of the Constitution, and discuss with fellow students, albeit
briefly, about their decisions and rationale. Figure 1 provides a visual overview of
the model.
Figure 1: An Overview of the “Lightning Case” Model
Teacher Guides
Overview of
Right/Concept in
Question
Students deliberate a
number of illustrative
cases dealing with the
concept.
Students tackle a
Students conceptualize
number of
the boundscases
of the
illustrative
right/concept in the eyes
dealing with the
of the law.
concept.
The model provides students with the opportunity to utilize several cases to
develop their own conceptualization of the boundaries of liberty within society and
in the “eyes of the law.” The teacher provides a brief overview of the rights
enumerated in the Constitution based upon the specific concept that will be
addressed. After this introduction, several cases are presented to the student in a
written or oral format with a short synopsis of the key facts of illustrative Supreme
Court cases. Pending on the teacher’s preference, students may be given the
opportunity to deliberate with their classmates, or they will create their own
decision of the case. After the court’s actual decisions are shared with the students
with brief rationale for their decision, students conceptualize the boundary of the
right or concept discussed in the “Lightning Case” session.
Introduction to the Controversy
All people are supposed to be treated equally under the law. However, minors are a
special category of person. They cannot be expected to make the same decisions as
adults.
In many situations involving minors and schools, constitutional violations are
upheld because of two reasons: 1. Schools are legally regarded as serving “in loco
parentis,” or “in lieu of parents;” 2. The mission of schools is to serve as an
educational body and many of the situations may usurp that mission if allowed to
occur. Another compounding factor of these unique situations is that the
constitutional issue applies only to public school settings and not to private schools.
Many of these cases explore the realm of the First Amendment and specifically
clauses dealing with the establishment of religion and the freedom of speech.
The Cases
West Virginia State Board of Education v. Barnette (1943)
Overview of the Case
The West Virginia Board of Education required that the flag salute be part of the
program of activities in all public schools. All teachers and pupils were required to
honor the Flag; refusal to salute was treated as "insubordination" and was
punishable by expulsion and charges of delinquency.
Question
Did the compulsory flag-salute for public schoolchildren violate the First
Amendment?
Tinker v. Des Moines Independent School District (1969)
Overview of the Case
In December 1965, John and Mary Beth Tinker and their friend Chris Eckhardt
wore black armbands to school in Des Moines, Iowa, to protest the war in Vietnam.
School officials told them to remove the armbands, and when they refused, they
were suspended (John, 15, from North High; Mary Beth, 13, from Warren Harding
Junior High; and Chris, 16, from Roosevelt High). With their parents, they sued the
school district, claiming a violation of their First Amendment right of freedom of
speech.
Question
Does a prohibition against the wearing of armbands in public school, as a form of
symbolic protest, violate the First Amendment's freedom of speech protections?
Lemon v. Kurtzman (1970)
Overview of the Case
The case was heard with two other cases. In Pennsylvania, a statute provided
financial support for teacher salaries, textbooks, and instructional materials for
secular subjects to non-public schools. The Rhode Island statute provided direct
supplemental salary payments to teachers in non-public elementary schools. Each
statute made aid available to "church-related educational institutions."
Question
Did the Rhode Island and Pennsylvania statutes violate the First Amendment's
Establishment Clause by making state financial aid available to "church- related
educational institutions"?
Lee v. Weisman (1992)
Overview of the Case
In keeping with the practice of several other public middle and high school
principals in Providence, Rhode Island, Robert E. Lee, a middle school principal,
invited a rabbi to speak at his school's graduation ceremony. Daniel Weisman's
daughter, Deborah, was among the graduates. Hoping to stop the rabbi from
speaking at his daughter's graduation, Weisman sought a temporary restaining
order in District Court - but was denied. After the ceremony, where prayers were
recited, Weisman filed for a permanent injunction barring Lee and other Providence
public school officials from inviting clergy to deliver invocations and benedictions at
their schools' ceremonies. When the Court of Appeals affirmed a District Court
ruling against the schools, Lee appealed to the Supreme Court and was granted
certiorari.
Question
Does the inclusion of clergy who offer prayers at official public school ceremonies
violate the Establishment Clause of the First Amendment?
Santa Fe Independent School District v. Jane Doe (2000)
Overview of the Case
Prior to 1995, a student elected as Santa Fe High School's student council chaplain
delivered a prayer, described as overtly Christian, over the public address system
before each home varsity football game. One Mormon and one Catholic family filed
suit challenging this practice and others under the Establishment Clause of the
First Amendment. The District Court enjoined the public Santa Fe Independent
School District (the District) from implementing its policy as it stood. While the suit
was pending, the District adopted a new policy, which permitted, but did not
require, student-initiated and student- led prayer at all the home games and which
authorized two student elections, the first to determine whether "invocations"
should be delivered at games, and the second to select the spokesperson to deliver
them. After the students authorized such prayers and selected a spokesperson, the
District Court entered an order modifying the policy to permit only nonsectarian,
nonproselytizing prayer. The Court of Appeals held that, even as modified by the
District Court, the football prayer policy was invalid. The District petitioned for a
writ of certiorari, claiming its policy did not violate the Establishment Clause
because the football game messages were private student speech, not public speech.
Question
Does the Santa Fe Independent School District's policy permitting student-led,
student-initiated prayer at football games violate the Establishment Clause of the
First Amendment?
Safford Unified School District v. Redding (2008)
Overview of the Case
Savana Redding, an eighth grader at Safford Middle School, was strip-searched by
school officials on the basis of a tip by another student that Ms. Redding might have
ibuprofen on her person in violation of school policy. Ms. Redding subsequently filed
suit against the school district and the school officials responsible for the search in
the District Court for the District of Arizona. She alleged her Fourth Amendment
right to be free of unreasonable search and seizure was violated. The district court
granted the defendants' motion for summary judgment and dismissed the case. On
the initial appeal, the U.S. Court of Appeals for the Ninth Circuit affirmed.
However, on rehearing before the entire court, the court of appeals held that Ms.
Redding's Fourth Amendment right to be free of unreasonable search and seizure
was violated. It reasoned that the strip search was not justified nor was the scope of
intrusion reasonably related to the circumstances.
Question
1) Does the Fourth Amendment prohibit school officials from strip searching
students suspected of possessing drugs in violation of school policy?
2) Are school officials individually liable for damages in a lawsuit filed under 42
U.S.C Section 1983?
For Teachers: More About the Cases
West Virginia State Board of Education v. Barnette (1943)
In a 6-to-3 decision, the Court overruled its decision in Minersville School
District v. Gobitis and held that compelling public schoolchildren to salute
the flag was unconstitutional. The Court found that such a salute was a form
of utterance and was a means of communicating ideas. "Compulsory
unification of opinion," the Court held, was doomed to failure and was
antithetical to First Amendment values. Writing for the majority, Justice
Jackson argued that "[i]f there is any fixed star in our constitutional
constellation, it is that no official, high or petty, can prescribe what shall be
orthodox in politics, nationalism, religion, or other matters of opinion or force
citizens to confess by word or act their faith therein."
Tinker v. Des Moines Independent School District (1969)
By a 7-2 vote, the court voted for Tinker. The wearing of armbands was "closely
akin to 'pure speech'" and protected by the First Amendment. School environments
imply limitations on free expression, but here the principals lacked justification for
imposing any such limits.The principals had failed to show that the forbidden
conduct would substantially interfere with appropriate school discipline.
Lemon v. Kurtzman (1970)
The Court ruled 8-0 that the statutes violated the Establishment Clause. Chief
Justice Burger articulated a three-part test for laws dealing with religious
establishment. To be constitutional, a statute must have "a secular legislative
purpose," it must have principal effects which neither advance nor inhibit religion,
and it must not foster "an excessive government entanglement with religion." The
Court found that the subsidization of parochial schools furthered a process of
religious inculcation, and that the "continuing state surveillance" necessary to
enforce the specific provisions of the laws would inevitably entangle the state in
religious affairs. The Court also noted the presence of an unhealthy "divisive
political potential" concerning legislation which appropriates support to religious
schools.
Lee v. Weisman (1992)
Yes. In a 5-to-4 decision, the Court held that government involvement in this case
creates "a state-sponsored and state-directed religious exercise in a public school."
Such conduct conflicts with settled rules proscribing prayer for students. The
school's rule creates subtle and indirect coercion (students must stand respectfully
and silently), forcing students to act in ways which establish a state religion. The
cornerstone principle of the Establishment Clause is that government may not
compose official prayers to recite as part of a religious program carried on by
government.
Santa Fe Independent School District v. Jane Doe (2000)
Yes. In a 6-3 opinion delivered by Justice John Paul Stevens, the Court held that
the District's policy permitting student-led, student-initiated prayer at football
games violates the Establishment Clause. The Court concluded that the football
game prayers were public speech authorized by a government policy and taking
place on government property at government-sponsored school-related events and
that the District's policy involved both perceived and actual government
endorsement of the delivery of prayer at important school events. Such speech is not
properly characterized as "private," wrote Justice Stevens for the majority. In
dissent, Chief Justice William H. Rehnquist, joined by Justices Antonin Scalia and
Clarence Thomas, noted the "disturbing" tone of the Court's opinion that "bristle[d]
with hostility to all things religious in public life.
Safford Unified School District v. Redding (2008)
Sometimes, fact dependent. No. The Supreme Court held that Savanna's Fourth Amendment rights were
violated when school officials searched her underwear for non-prescription painkillers. With David H. Souter
writing for the majority and joined by Chief Justice John G. Roberts, and Justices Antonin G. Scalia, Anthony M.
Kennedy, Stephen G. Breyer, and Samuel A. Alito, and in part by Justices John Paul Stevens and Ruth Bader
Ginsburg, the Court reiterated that, based on a reasonable suspicion, search measures used by school officials to
root out contraband must be "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." Here, school officials did not have
sufficient suspicion to warrant extending the search of Savanna to her underwear. The Court also held that the
implicated school administrators were not personally liable because "clearly established law [did] not show that
the search violated the Fourth Amendment." It reasoned that lower court decisions were disparate enough to
have warranted doubt about the scope of a student's Fourth Amendment right.
Justice Stevens wrote separately, concurring in part and dissenting in part, and was joined by Justice Ginsburg.
He agreed that the strip search was unconstitutional, but disagreed that the school administrators retained
immunity. He stated that "[i]t does not require a constitutional scholar to conclude that a nude search of a 13year old child is an invasion of constitutional rights of some magnitude." Justice Ginsburg also wrote a separate
concurring opinion, largely agreeing with Justice Stevens point of dissent. Justice Clarence Thomas concurred
in the judgment in part and dissented in part. He agreed with the majority that the school administrators were
qualifiedly immune to prosecution. However, he argued that the judiciary should not meddle with decisions
school administrators make that are in the interest of keeping their schools safe.
Final Assessment: Christian Club
For this assessment, hear the case provided and write an opinion on the case. Your
teacher will provide a rubric for your opinion:
Board of Education of Westside Community Schools v. Mergens (1989)
The school administration at Westside High School denied permission to a group of
students to form a Christian club with the same privileges and meeting terms as
other Westside after-school student clubs. In addition to citing the Establishment
Clause, Westside refused the club's formation because it lacked a faculty sponsor.
When the school board upheld the administration's denial, Mergens and several
other students sued. The students alleged that Westside's refusal violated the Equal
Access Act, which requires that schools in receipt of federal funds provide "equal
access" to student groups seeking to express "religious, political, philosophical, or
other content" messages. On appeal from an adverse District Court ruling, the
Court of Appeals found in favor of the students. The Supreme Court granted
Westside certiorari.
Question
Was Westside's prohibition against the formation of a Christian club consistent
with the Establishment Clause, thereby rendering the Equal Access Act
unconstitutional?
Bibliography
The Cases
West Virginia Board of Education v. Barnette (1943)
http://www.oyez.com/cases/1940-1949/1942/1942_591
Tinker v. Des Moines Independent School District (1969)
http://www.oyez.org/cases/1960-1969/1968/1968_21
Lemon v. Kurtzman (1970)
http://www.oyez.com/cases/1970-1979/1970/1970_89
Lee v. Weisman (1992)
http://www.oyez.com/cases/1990-1999/1991/1991_90_1014
Santa Fe Independent School District v. Jane Doe (2000)
http://www.oyez.com/cases/1990-1999/1999/1999_99_62
Safford Unified School District v. Redding (2008)
http://www.oyez.com/cases/2000-2009/2008/2008_08_479
Final Assessment
Board of Education of Westside Community Schools v. Mergens (1989)
http://www.oyez.com/cases/1980-1989/1989/1989_88_1597