2010-2011 SCWLA Board of Directors Candidates

Below are the bios for the 2010-2011 candidates for SCWLA Board of Directors.  SCWLA members may vote for 12 candidates.  You can mail this ballot to SCWLA – PO Box 11910, Columbia, SC 29211 – or email it to scwla@yahoo.com  

1)  Cynthia Durham Blair

Ms. Durham graduated from Florida State University (BS 1990), the USC School of Law (JD 1992) and the USC School of Business (MIBS 1995).  She joined Rogers Townsend & Thomas, PC in 2002 and is the department head of the Transactional Law Department and manages the REO (real-estate owned) and residential real estate practice.  Cynthia is licensed to practice in both state and federal courts in SC and Florida. She is immediate past president of the Palmetto Land Title Association and is past president of the Mortgage Bankers Association of Greater Columbia.  She is also a member of the Columbia Rotary Club, and the Home Builders Association of Greater Columbia.  In 2006, the STATE newspaper selected her as one of “20 under 40” award recipients for outstanding business people in the Midlands.  She loves spending time with her husband and their 2 year old son.

2) Natalie Parker Bluestein (President-Elect, Current SCWLA Board member and Low County Regional Representative)

Natalie Bluestein

Natalie has a BA from the College of Charleston, and an MPA and JD from USC; She practices Family Law exclusively in the Tri-County area, and mediates and is certified in Collaborative Law. She’s been a SCWLA Board member since 2002, and the Charleston County Family Court Liaison Chair and/or co-chair since 2005, and has been the Family Recovery Court of Charleston Chair since 2007.  She is also a mentor through the SC Supreme Court’s program.  She volunteers through the Junior League of Charleston, and is married to Scott Bluestein (A proud member of SCWLA), and has two dogs, three cats, and lots of fish! 

3) Wendy Cartledge

Wendy Cartledge serves as Deputy General Counsel and is responsible for the investigation and prosecution of all educator complaints. She serves as the Human Resource/Employment attorney for the SCDE, is a member of the Foreign Teachers Advisory Committee, and assists in bus transportation and pandemic flu matters. Mrs. Cartledge previously served as a litigation attorney with the Department of Labor, Licensing & Regulation, where she prosecuted licensee disciplinary cases. She has also prosecuted child abuse and neglect cases, and termination of parental rights and vulnerable adult cases for Beaufort County DSS.  Ms. Cartledge graduated cum laude from Duke University School of Nursing and received a Juris Doctor from the University of South Carolina School of Law. She served as Executive Editor of the SC Law Review, and was a member of the National Moot Court Team, Order of the Barristers, and the Order of Wig and Robe. Ms. Cartledge serves on the board of the SC Administrative and Regulatory Law Association and is a member of the SC Bar Administrative Law Committee and SC Women Lawyer’s Association

4) Laura Calloway Hart

Laura Callaway Hart is Of Counsel with Duff, White & Turner, L.L.C. in Columbia, a firm with particular expertise and experience in education law.  Prior to her current position, Laura was a partner at Nelson, Mullins, Riley & Scarborough in Columbia from 1997 to 2008, where she served as one of three primary attorneys for the plaintiff school districts in the landmark school funding lawsuit, Abbeville County School District, et al. v. State of South Carolina, et al., for which she received Nelson Mullins’ Claude M. Scarborough, Jr. Pro Bono Award.  She practiced with Turner, Padget, Graham & Laney, P.A. in Columbia from 1983 until 1997.  Laura earned her Bachelor of Arts, with distinction, with a major in Piano Performance, from Converse College in 1975 and her J.D., cum laude, from the University of South Carolina in 1983. 

5) Karen Lee Huelson (Current SCWLA Board Member and Midlands’ Regional Representative)

 

Karen Huelson

Karen is an attorney at the Supreme Court of South Carolina, where she is a law clerk to the Honorable Donald W. Beatty.  She earned a B.S. in Busines Administration, summa cum laude, from U.S.C. and a J.D., cum laude, from U.S.C.’s School of Law.  In law school, Ms. Huelson received the Order of the Coif and was a member of the Order of Wig and Robe, as well as a student member of the John Belton O’Neill Inn of Court.  She has done appellate work at both the South Carolina Court of Appeals and the Supreme Court of South Carolina as a staff attorney and law clerk. 

 

 6) The Honorable Alison Renee Lee

The Honorable Alison Renee Lee

Judge Alison Renee Lee was born in Washington, D. C. on September 17, 1958. Her parents are James Joseph Lee, deceased, and Juanita Bacote Lee, a retired schoolteacher.

After graduation from catholic schools in Washington, she attended Vassar College where she graduated with a Bachelor of Arts degree in Science, Technology and Society, Urban Studies division. She received her law degree from Tulane University School of Law in New Orleans, Louisiana in 1982. At Tulane, she was a member of the National Appellate Moot Court Team and the Moot Court Board.

Upon graduation, she served as law clerk to the Honorable Israel M. Augustine, Jr. of the Louisiana Fourth Circuit Court of Appeals. She then moved to Columbia, South Carolina to clerk for the Honorable C. Tolbert Goolsby, Jr. of the South Carolina Court of Appeals.

In September 1984, she began employment at the McNair Law Firm practicing in the Litigation Section. She practiced commercial litigation and employment discrimination law for five years. During these five years, she was a member of the Richland County Department of Social Services Board; an Associate Commissioner of the Board of Grievances and Discipline of the South Carolina Bar; and a member of the Planning Committee of the United Way of the Midlands.

In December 1989 she was employed at the South Carolina Legislative Council drafting legislation for members of the General Assembly. Areas of specialization included transportation, criminal laws, corrections, and judiciary.

After government restructuring, she was one of the first Administrative Law Judges elected by the General Assembly to the Administrative Law Judge Division. She was elected in February 1994 to a one year term and took office on March 1, 1994. She was reelected to a five year term in 1995. In February 1999, she was elected by the General Assembly to the position of Circuit Court Judge, At Large.

She is a member of the Texas, Louisiana, and South Carolina Bars. Other professional memberships in South Carolina include the S.C. Women Lawyers Association and the Richland County Bar.

Judge Lee is active in a variety of civic and philanthropic endeavors. She is active in the Columbia Chapter of The Links, Inc. where she has served as several officers including President. She is also a member of the Columbia Chapter of Jack and Jill, Inc. where she has served as an officer. She is active in St. Peter’s Catholic Church, previously serving on the Parish Council and St. Peter’s Catholic School Board. Currently she is a Lector and an Extraordinary Minister of the Eucharist.

7) Sarah E. Leverette (Current SCWLA Board Member)

As one of the first women lawyers in South Carolina, Sarah Elizabeth Leverette is a pioneer in the legal arena and a tireless advocate for human rights.  A native of the upstate town of Iva, Ms. Leverette is highly regarded for the significant impact she has had on many through her leadership and public service.

 At the University of South Carolina, Ms. Leverette was elected to Phi Beta Kappa and graduated Magna Cum Laude, and she attended the University of South Carolina School of Law, where she graduated as the only woman in her class.  In 1943, she was admitted to the South Carolina Bar, but she found that having a law degree did not ensure women the opportunity to practice law.  Instead, she began a long career in legal research, starting at the S.C. Department of Labor.  Following her post-graduate work at Columbia University, Ms. Leverette returned to the University of South Carolina School of Law as a librarian and instructor.  She became the first female faculty member at the Law School, and taught there for a quarter century.  During her tenure at the Law School, she was appointed by then Governor John C. West to serve on the Committee to Revise the Constitution of South Carolina, and wrote the procedural outline for the current method of amending our state constitution.  She later received the Juris Doctor degree and was admitted to practice before the United States Court of Appeals for the 4^th Circuit.  Ms. Leverette left the university in the 1970’s to serve as Commissioner and Chairman of the S.C. Industrial Commission, from which she retired in the 1980’s.

 Equally impressive is her commitment to volunteerism.  Ms. Leverette often says that she and the League of Women Voters grew up together since they were both born in the same year.  Her involvement with the League has been one of dedication and leadership.  She served as president of the League from 1958-61 and was presented with the Barbara W. Moxon Award, honoring those dedicated to advocacy.  Her involvement continues today.

Over the years, Ms. Leverette has received many honors, but in 2001 she received the South Carolina Women Lawyers Association’s highest honor, the Jean Galloway Bissell Award.  The Bissell Award criteria include: the nominee’s distinguished and noteworthy service to the public and the legal profession; achievement of professional excellence; and participation in activities that have paved the way to success for women lawyers on the national, state or local level.  Ms. Leverette also received the Women of Distinction Award from the Girl Scouts of Congaree Area in 2006, and in 2008, she was awarded the Consumer Spirit Award for Excellence in Consumer Advocacy by the S.C. Department of Consumer Affairs.

 Ms. Leverette continues to be involved in several community organizations, including; Common Cause of South Carolina, where she serves as president; the Community Relations Luncheon Club; the Rich Land Foundation; the American Association of University Women; Education First; the Seniors Lawyers of the S.C. Bar; and; she is a lifetime member of the USC Alumni Association.  She currently serves on the Board of the S.C. Women Lawyers Association (SCWLA) and the State Board of the League of Women Voters where she researches and tracks state and local legislation.

At 88, Ms. Leverette hasn’t slowed her pace.  She’s currently working as a realtor for Russell and Jeffcoat Realtors and is a member of Trinity Episcopal Cathedral.

 8)  Julie Jeffords Moose (Current SCWLA Board Member) 

Julie is a partner with Turner Padget, and she is the practice group leader for Turner Padget’s Business Group.  Julie has an active business, commercial, and litigation practice and spends the majority of her practice handling accounting, financial, business, and business related cases.  Julie graduated from Clemson University in 1984 and from the USC School of Law in 1989.  Julie has served on the Board of the South Carolina Women Lawyers Association since 2006.  Julie is active in the South Carolina Bar Association, serving as a 12th Judicial Representative to the House of Delegates since 2005 and as a member of the Nominating Committee (2005 to 2008 and 2009 to the present) and the Paralegal Task Force (2008 to 2009).  She is a South Carolina representative to the ABA Section of Litigation Women Advocate Committee.  Julie served as a member and secretary of Supreme Court Commission on CLE and Specialization from 2002 to 2008.   In addition to her work in the South Carolina Bar and professional associations, Julie is active in many community organizations, including serving on the board of the Florence Rotary Club and supporting its community and world-wide philanthropic activities.  She was licensed as a Certified Public Accountant from 1987 to 2005. 

 

9) Stephanie A. Nye (Current SCWLA Board Member and Webmaster)

Stephanie A. Nye

Stephanie A. Nye is Counsel to the Honorable Chief Justice Jean H. Toal of the South Carolina Supreme Court.  She works as the primary liaison between the South Carolina Supreme Court and the Access to Justice Commission.  In addition, she serves on the South Carolina Supreme Court Task Force on Public Access to Court Records, South Carolina Board of Governor’s Professional Potential Task Force, South Carolina Bar’s Task Force on Courts, 2009 Young Lawyers Division Social Media Task Force, and the Task Force on State Courts and the Elderly.  Since 2004 she has also served on the South Carolina Women Lawyers Association’s Board of Directors.  She is currently SCWLA’s webmaster.

Ms. Nye served as Chief Justice Toal’s law clerk form 1999 until 2001 and as her Counsel for the past three years.   From 2001 to 2005, Ms Nye was an associate at Nelson Mullins Riley and Scarborough, LLP, where she practiced in pharmaceutical and medical devices and product liability litigation.  From 2005 to 2006, she served as an Assistant Attorney General at the South Carolina Attorney General’s Office, Insurance Fraud Division, where she prosecuted insurance fraud cases statewide.  She was also an adjunct professor of legal writing for three years at the University of South Carolina School of Law.    

In 1996, Ms. Nye received a triple major from Duke University in Biology, Art History, and History.  She received a Juris Doctor from the University of South Carolina School of Law in 1999.  During law school she served as editor in chief of the South Carolina Environmental Law Journal, a member of the ABA Competition Team of the Moot Court Bar, Order of Wig and Robe, and Women in Law.

10) Jennifer W. Rubin

Jennifer W. Rubin

Jennifer Rubin is a shareholder with Rogers, Townsend & Thomas, PC in Columbia and a member of the firm’s Default Services department.  She concentrates her practice in the areas of mortgage law, creditor bankruptcy and title insurance defense.  She is chair of her firm’s Law Clerk Committee.  Jennifer received her Bachelor of Science degree in Political Science and History in 1996 from The Florida State University before completing her J.D. at the University of South Carolina in 1999.  She is a member of the South Carolina Bar (Young Lawyer’s and Women Lawyer’s Divisions), the American Bar Association and is the Scholarship Chairperson for the Palmetto Land Title Association.  Her achievements have earned her recognition from the South Carolina Bar and from The State Newspaper; she was awarded the South Carolina Bar’s 2005-2006 “Young Lawyer of the Year Award” in 2006 and was named one of the State newspaper’s “20 under 40″ rising stars of the Midlands in 2007.  Jennifer is currently writing a chapter on foreclosure law to be included in the second edition of “The Paralegal’s Survival Guide.”  In addition, Jennifer continues to publish articles as a Legal Services Committee member for the American Legal and Financial Network (AFN) and a frequent speaker at various seminars and conferences throughout the year. 

11) Tara Dawn Shurling (Current SCWLA Board Member)

Tara Dawn Shurling received her undergraduate degree from the University of South Carolina in 1976. Subsequently, she received her J.D. Degree from the University of South Carolina in 1978. After graduating from law school, she joined the staff of the then newly created South Carolina Office of Appellate Defense in March, 1979. While with that state agency, she represented indigents and handled approximately 2,000 criminal appeals including direct appeals and appeals from the denial of Post-Conviction Relief Applications. Attorneys with that agency function as appellate public defenders for those who cannot afford to hire legal counsel on appeal.

In June of 1994, Ms. Shurling left Appellate Defense and went into private practice. Her practice has four primary focal areas. The practice focuses on general criminal defense in both state and federal court. Secondly, the practice focuses on direct criminal appeals to both the South Carolina Court of Appeals and the Supreme Court of South Carolina. Thirdly, the practice focuses on Post-Conviction Relief cases, both in the circuit court and on appeal to the Supreme Court of South Carolina. In addition, her practice handles personal injury cases.

Ms. Shurling is admitted to practice in the United States District Court, the Fourth Circuit Court of Appeals and the United States Supreme Court in addition to the South Carolina State Bar. Ms. Shurling is a frequent speaker at various continuing legal education seminars. She is a past chairman of the criminal law section of the South Carolina Bar and has been actively involved on many other bar committees. She is a past President of the South Carolina Chapter of the Federal Bar Association. She also serves on the Board for the South Carolina Women Lawyer’s Association. Ms. Shurling is a Fellow in the prestigious American Academy of Appellate Lawyers. She joins only five other South Carolina lawyers to be admitted to the Academy and was the first female lawyer in South Carolina to be admitted.

12) D. Kay Tennyson 

Kay Tennyson

D. Kay Tennyson is a partner of Nelson Mullins Riley & Scarborough LLP. She practices in Columbia in the areas of privacy law; business, securities litigation, internal investigations, real estate, and technology litigation; product liability defense; and litigating class actions.

Ms. Tennyson’s experience includes work on complex business litigation matters and product liability matters at the discovery, trial, and appellate levels. She has also been involved in internal investigations for several publicly traded companies. A member of the South Carolina Bar and former editor-in-chief of its magazine, South Carolina Lawyer, Ms. Tennyson is admitted to practice before the United States Supreme Court, the United States Circuit Court of Appeals for the Fourth Circuit, and the United States District Court for the District of South Carolina. She is a member of the American Bar Association (fellow, Young Lawyers Division; affiliate assistance team member, 1998-2000; Young Lawyers Division liaison to Senior Lawyers Division, 1998-99), the Defense Research Institute, the Federal Bar Association, the Richland County Bar Association, the South Carolina Defense Trial Attorneys Association, and the South Carolina Women Lawyers Association.

Ms. Tennyson is the co-author of “South Carolina’s New Financial Identity Fraud and Identity Theft Protection Act: What Does It Mean to You?” published in the January 15, 2009 edition of Higher Standard, a newsletter published by the South Carolina Commission on Prosecution Coordination and “Lost Laptops and Personal Financial Information: What Does South Carolina’s New Identity Fraud Act Mean to Businesses?” published in South Carolina Lawyer, September 2008. She has also spoken several times regarding South Carolina’s Financial Identity Fraud and Identity Theft Protection Act and other laws and regulations regarding information security and privacy.

Prior to joining Nelson Mullins, Ms. Tennyson was in private practice with a leading Charleston, South Carolina firm. She served as law clerk to U.S. District Judge Sol Blatt Jr. of the District of South Carolina. Additionally, she served as a law clerk to United States District Judge Falcon B. Hawkins, of the District of South Carolina, and as a law clerk to United States Magistrate Judge E.S. Swearingen of the District of South Carolina.

In 1988, Ms. Tennyson earned a Juris Doctor from the University of South Carolina School of Law, where she was named to The Order of the Coif, served as Student Works Editor of the South Carolina Law Review, and was a member of the Order of Wig and Robe. She earned a Bachelor of Arts in Political Science from Clemson University in 1984.

D. Kay Tennyson is a partner of Nelson Mullins Riley & Scarborough LLP. She practices in Columbia in the areas of privacy law; business, securities litigation, internal investigations, real estate, and technology litigation; product liability defense; and litigating class actions.

Ms. Tennyson’s experience includes work on complex business litigation matters and product liability matters at the discovery, trial, and appellate levels. She has also been involved in internal investigations for several publicly traded companies. A member of the South Carolina Bar and former editor-in-chief of its magazine, South Carolina Lawyer, Ms. Tennyson is admitted to practice before the United States Supreme Court, the United States Circuit Court of Appeals for the Fourth Circuit, and the United States District Court for the District of South Carolina. She is a member of the American Bar Association (fellow, Young Lawyers Division; affiliate assistance team member, 1998-2000; Young Lawyers Division liaison to Senior Lawyers Division, 1998-99), the Defense Research Institute, the Federal Bar Association, the Richland County Bar Association, the South Carolina Defense Trial Attorneys Association, and the South Carolina Women Lawyers Association.

Ms. Tennyson is the co-author of “South Carolina’s New Financial Identity Fraud and Identity Theft Protection Act: What Does It Mean to You?” published in the January 15, 2009 edition of Higher Standard, a newsletter published by the South Carolina Commission on Prosecution Coordination and “Lost Laptops and Personal Financial Information: What Does South Carolina’s New Identity Fraud Act Mean to Businesses?” published in South Carolina Lawyer, September 2008. She has also spoken several times regarding South Carolina’s Financial Identity Fraud and Identity Theft Protection Act and other laws and regulations regarding information security and privacy.

Prior to joining Nelson Mullins, Ms. Tennyson was in private practice with a leading Charleston, South Carolina firm. She served as law clerk to U.S. District Judge Sol Blatt Jr. of the District of South Carolina. Additionally, she served as a law clerk to United States District Judge Falcon B. Hawkins, of the District of South Carolina, and as a law clerk to United States Magistrate Judge E.S. Swearingen of the District of South Carolina.

In 1988, Ms. Tennyson earned a Juris Doctor from the University of South Carolina School of Law, where she was named to The Order of the Coif, served as Student Works Editor of the South Carolina Law Review, and was a member of the Order of Wig and Robe. She earned a Bachelor of Arts in Political Science from Clemson University in 1984.

13) Ayesha T. Washington (Current SCWLA Board Member)

Ayesha T. Washington is a native of Charleston, South Carolina. She is a graduate of Clemson University, the University of South Carolina School of Law, and The Citadel.  She currently holds a Bachelor of Arts in Psychology, a Juris Doctor, and a Masters in Business Administration. 

While in law school, she was the President of Black Law Students Association, an Articles Editor for the Southeastern Environmental Law Journal, and a member of Phi Delta Phi, and Women in Law. Ms. Washington was admitted to the South Carolina Bar in 2002, the United States District Court, District of South Carolina in 2005, and the United States Supreme Court in May of 2008. She is a member of the Thurgood Marshall Society, Charleston County Bar Association, and South Carolina Women Lawyers Association (Board Member). Her areas of practice include general negligence, personal injury, FELA, train grade crossing collisions, product liability, toxic torts, contracts, probate and estates, and insurance law.

Additionally, Ayesha is active within her community, currently serving on the Board of Directors of two non-profit organizations: It’s Up to Me! (a teen pregnancy prevention program), and Carolina Empowerment Group (a HIV/AIDS awareness program). She is also a mentor for the Young Ladies Conquering Obstacles, a teen enrichment program and a member of Charleston Alumnae Chapter of Delta Sigma Theta Sorority, Inc.

14) Marguerite S. Willis (Current SCWLA Board Member)

Marguerite Willis

Since May 1, 2000, Ms. Willis has worked at Nexsen Pruet, LLC as a partner practicing Commercial and Antitrust law.  From  1978 to 2000, she worked at Howrey Simon Arnold & White in Washington, D.C.   She graduated with a B.A. from the University of Michigan in 1971, where she graduated with high distinction.  In 1974, she received a J.D. from Stetson University and graduated cum laude.   She served as a clerk for the Honorable Paul H. Roney, United States Court of Appeals for the Fifth Circuit, 1974-1975.  She was also a clerk to the Honorable Peter T. Fay, United States District Court for the Southern District of Florida, 1975-1976.

Ms. Willis practices in complex commercial litigation, with concentration in the antitrust and products liability fields.  She has substantial experience in class action practice and in litigating matters involving claims of false advertising and vicarious corporate liability.  She practices in both state and federal courts throughout the United States.

Judge Cam Currie and Judge Margaret Seymour Discuss What Works With Juries

Judges Cam Currie and Margaret Seymour, both U.S. District Court Judges for the District of South Carolina, presented at the SCWLA Midlands Regional Luncheon on November 5^th.  The title of their joint presentation was:  “What Works and Does Not Work With Juries.” 

Judge Cam Currie and Judge Margaret Seymour, November 5, 2009

Judge Currie began the presentation by discussing the questions she often receives from juries following trials.  Some of these questions are humorous, including:  “Are you married?”, “How old are you?”, and “Do you know that you look a lot like Judge Judy?”  Through these discussions with juries, Judge Currie has also learned what tends to bother jurors the most, and she refers to these annoyances as the “Three Rs”:

• Repetition –  Specifically, re-asking questions.  It is important to listen to the answers to questions and follow up.
• Redundancy –  Repeating themes unnecessarily.
• Lack of Respect –  Demonstrating a lack of respect for the judge and the proceedings.  The jurors often identify with the judge so it is important not to be rude to the judge.  Also, be aware of rude, non-verbal cues such as eye rolling, whispering, and turning away from someone while they are speaking.  Finally, attorneys should always thank the jurors for their service at the conclusion of the proceedings.

Judge Cam Currie Addresses the SCWLA Midlands Regional Luncheon

In regards to repetition and redundancy, Judge Currie explained that attorneys often try their case with the slowest juror in mind.  As a result they often repeat issues and themes unnecessarily.  She suggested that the slowest juror isn’t always the most significant person on the jury, and a lot of repetition could actually offend the others on the jury.  A better strategy would be to target the juror who falls somewhere in the middle. 

Judge Currie also cautioned attorneys about using technology in the courtroom.  Jurors today are spoiled by technology.  Jurors even expect technology in the courtroom, and they expect it to run smoothly!  If you plan to use technology in the courtroom, be familiar with it before you arrive or bring someone who is.

Judge Margaret Seymour Discusses What Jurors Like During a Trial

Judge Seymour then offered several tips for the different phases of the trial, beginning with jury selection.  She cautioned attorneys to watch their non-verbal cues, even at this stage in the proceedings.  The jurors watch everything!  It is important to face the potential jurors during selection and to watch your facial expressions and other cues during the selection process.  As to opening statements, Judge Seymour advised attorneys not to write the statement because it will encourage you to read it directly.  Instead, come prepared with a detailed outline that humanizes your client.  If you plan to tell a story in either opening statement or closing argument, be sure the story is appropriate!  As to the trial, it is very important to listen actively to the answers to the questions you ask.  If an attorney does not appear to be interested in the answer to a question, then the jury will not think that answer is important.  Finally, only a basic outline is needed during closing arguments because you need to leave room for some improvisation.    

The luncheon was a huge success and was very well-attended.  SCWLA thanks Judge Currie and Judge Seymour for their time.

SCWLA Midlands Regional Luncheon, Palmetto Club, November 5, 2009

 

Judge Strickland Enjoys the Luncheon

 

Pamela Roberts Introduces the Speakers

 

 

 

Pictures from the SCWLA and USC Women in Law Reception on November 9th

 

Robin Wheeler and Liz Zeck Enjoy the Reception

 

Barbara Barton and Victoria Eslinger

 

Angel Warren and Karen Huelson Enjoy the Snacks

 

Victoria Eslinger Discusses the Issues that Faced Women Law Students When She Attended USC

 

Victoria Eslinger Discusses Issues Facing Women

 

Walk to Fight Alzheimer’s Disease

On Saturday, October 17, 2009, a spunky crowd of supporters gathered at Finlay Park under overcast skies to show their support for the fight against Alzheimer’s Disease.  The walk was designed to raise money for research to benefit the 5 million people who are diagnosed with the disease annually. Supporters successfully raised about $60,000. 

SCWLA participated in the walk with its own team, “Williams’ Warriors”, named in honor of Karen Williams.  Karen, who recently resigned as Chief Judge of the United States Circuit Court of Appeals for the Fourth Circuit, has the early stages of the disease.  This did not deter her in any way from fully participating in the walk and setting an example for the rest of the team. 

In an emotional ceremony, the group released thousands of purple balloons to the strains of “I will remember you… Will you remember me?”  Ranging in age from 2 to much older, Williams’ Warriors dedicated their continuing efforts to support the research to eliminate this dreadful disease and invited others to join them.  The signs that they carried said it all:

WILLIAMS’ WARRIORS

 We Love you, Karen

 

Williams' Warriors

–Barbara Barton, Barton Law Firm P.A.

Member Profile: Alexandria (“Xan”) Skinner, a Solo Mediator

           

SCWLA Member, Alexandria ("Xan") Skinner

Alexandria (“Xan”) Skinner has a very exclusive practice. Exclusively mediation, that is. The choice to hang out a shingle is, in itself, a big leap for Xan, an experienced attorney new to solo practice. The leap is even bigger because Xan is currently the only South Carolina solo she knows of pursuing mediation full-time. She’s not worried, though. Xan has lots of peers and mentors she can call on for support, including at the Community Mediation Center. Xan was recognized at CMC’s recent volunteers’ breakfast for her strong interest in mediation.

What prompted Xan to become a solo mediator? Due to her lifelong passion for social justice, mediation sparked her interest as soon as she heard about it in 1983. When Xan mentioned that interest to a senior male lawyer, he argued that mediation would never fly, that everyone in a dispute would still be angry and still want to sue. In response to his and other advice, she pursued a more conventional legal career at first. Now, however, mediation is mainstream.  Xan, who recently returned from years living in China, is now listening to her inner voice that has been enticing her toward mediation all along.

Mediation interests Xan because she sees the litigation process as win-lose. Yes, justice can and does result from the adversarial process, she acknowledges. But there are usually significant casualties along the way, parties often perceive the process as unfair, and sometimes the wrong side wins for all the wrong reasons. Xan believes mediation is better able to bring about win-win results through a process that all parties agree is fair. The biggest benefit is the possibility of preserving a mutually beneficial relationship between the parties, a possibility that is typically destroyed the moment a lawsuit is filed. Xan’s goal is to reach people who are evaluating their options in a disagreement before they pull the trigger on a lawsuit.

Xan hasn’t stopped being a lawyer. She plans to maintain an active law license, legal malpractice insurance, and SCWLA membership. She’s also careful to walk the ethical tightrope of a lawyer who is mediating, not lawyering. She doesn’t hide the fact that she’s a lawyer in her marketing materials or in her conversations with clients. The juris doctor is one possible terminal degree for a professional mediator, and it’s the one Xan has. She does take pains to make it clear to her mediation clients that she is not entering into an attorney-client relationship with either party; she intends to be a neutral in mediating their conflict.

Mediation is suitable for resolving a surprising variety of conflicts. Xan is especially enthusiastic about elder mediation. In her opinion, that area is heating up because our society is beginning to shift toward paying for elder care, work that for centuries women did for free. For example, the primary caregiver for an elderly relative may think it’s time to pay for assisted living, while the elderly person or other family members may not feel ready to take that step. A mediator can help the various family members recognize what’s really going on in the situation, what needs have to be considered, and what steps they could take to craft an acceptable solution.

Xan points out that even lawyers sometimes seek mediation services. Litigators in some parts of the country are now turning to mediation for discovery disputes, because it saves the court time and helps preserve civility between the attorneys.

 This blogger is thrilled to see a woman lawyer pursuing her dream of resolving conflicts and building peace, for elders, for lawyers, and for everyone.

– Eve Ross, McNair Law Firm, P.A.

SCWLA Midland’s Regional Luncheon with Vickie Eslinger

At the October Luncheon for SCWLA’s Midlands Region, Marguerite Willis of Nexsen Pruet  introduced Victoria L. Eslinger, Esq., her law partner and the 2009 Advocate of the Year awarded by the SC Appleseed Legal Justice Center,  as a ground-breaking advocate for women in South Carolina.

Vickie’s career in pursuing social justice began with her desire to be a page in the SC Senate.  In an amusing retelling of a groundbreaking yet harrowing experience, Vickie told how she (with the help of her lawyers – now Justices – Jean Toal and Ruth Bader Ginsburg!) challenged and changed the law to allow females to serve as pages.  Vickie also reminded us what it was like to attend law school in the early ‘70s as one of only 5 women students in her class, describing both the triumphs – like hosting a national conference on Women In Law – and the tribulations – like having to negotiate with the Dean over access to “hygiene” facilities.

Vickie also described her most recent work to seek justice for the less fortunate.  She accepted a court-appointment in a DSS case to represent an undocumented Guatemala woman who had been (wrongly it turned out) arrested for public drunkenness.  Because of racial stereotyping by the Guardian ad Litem, Vickie’s client faced the distinct possibility of permanently losing custody of her American citizen baby, who was just three months old when his mother was arrested.   Due to Vickie’s hard work and innovative legal thinking, her client was released from jail and reunited with her child and was able to safely return to Guatemala as a family. 

You can read more about the child custody issues facing undocumented workers in this New York Times article:  http://www.nytimes.com/2009/04/23/us/23children.html?pagewanted=1&%2359;south carolina&%2334&_r=1&sq=guatemala &st=cse&%2359;&scp=1

Vickie challenged each SCWLA member to think not just about how far we have come as women lawyers but about how far we as a society have to go to ensure that all people have the right to equal justice under law.  She shared with us the “G” rated version of one of her favorite inspirational messages:  that one should live so that “when your feet hit the floor in the morning, the devil says ‘oh shoot, she’s up!’.”

–Elizabeth Zeck, Willoughby & Hoefer, P.A.

The Status of the Legal Profession: Dissatisfaction Among Female Attorneys

Report of the Professional Potential Task Force of the South Carolina Bar

             “The Status of the Profession,” with panelists Barbara George Barton, Rosalyn W. Frierson, and Katherine D. Helms, was an eye opening presentation for many and for others an affirmation of what they knew to be true in their daily pursuits.  The presentation opened with a vignette entitled “A Day in the Life ……. You’re Not Leaving, Are You?”  This video portrayed an end of the day conversation between a young associate and a partner and touched on some of the sources of dissatisfaction in the profession, including: lack of communication, unclear expectations, lack of guidance, and difficulties achieving work life balance. 

            After the video engaged and entertained everyone, the presentation rolled on to hit the highlights of the “State of the Profession” Report recently commissioned by the Bar.  As the slides progressed and the speakers pointed to statistics and commentary by the surveyed attorneys, slightly audible chuckles and sighs let loose showing the audience’s identification with the Report’s findings.  But there was no discussion that animated the audience more than the mere mention of Rule 608.  As our colleagues from North Carolina looked on with befuddled expressions, then realization, and then disbelief, the South Carolina attorneys had a constructive discussion about the difficulties of complying with the civil and criminal appointment rule and what could be changed or improved.  Indeed, the theme of the entire presentation was “how do we make things better,” and the commissioned report and its findings provided a meaningful and quantifiable starting point for the discussion to be brought back to the places attorneys work. 

            One of the most staggering findings of the Report is the cost of attrition.  When attorneys leave the profession due to dissatisfaction or other reasons, they take with them years of accumulated knowledge and a wealth of experience that is not easily or inexpensively replaced.  Although this seems intuitive, it is important to bring this cost to focus because it provides an impetus for change.

            The presentation wound down with an illustrative videotaped vignette of the same introductory scene portraying what that sought after change might look like.  The inner monologue of the partner’s and associate’s misunderstandings, gripes, and frustrations in the first vignette were replaced with open, understanding, and courteous dialogue with the result being a greater sense of shared responsibility in meeting clients needs.  The presentation was highly thoughtful and effective while still managing to entertain and make excellent use of audio and visual materials.  I hope that we have all taken something away from it and will continue to engage in this meaningful discussion.              

–Caroline H. Raines, Counsel for Litigation, South Carolina Department of Revenue

Dinner and Conversation with Justice Sandra Day O’Connor, October 1, 2009

Two armchairs and a side table set the stage for a conversation between retired U.S. Supreme Court Justice Sandra Day O’Connor and her former clerk, now Benjamin N. Cardozo School of Law professor, Marci Hamilton. As they spoke, nearly 300 women lawyers from North and South Carolina dined, listened, laughed, and applauded.

Justice O'Connor and Former Law Clerk, Marci Hamilton

Before the conversation began, SCWLA President Jenny Horne welcomed the group. She pointed out that NCAWA has hosted Justice Ginsburg, and now that SCWLA has hosted Justice O’Connor, it will be North Carolina’s turn to invite Justice Sonia Sotomayor next. Jenny thanked the early fighters for women’s rights who “left the ladder down” for the current generation of women lawyers to climb. She also expressed hope that today’s women law students, who are fifty percent of all law students, will in due time become half of all practicing lawyers, and half of all judges and Supreme Court justices. Tara Shurling gave the invocation, and Barbara Barton introduced the guest of honor.

SCWLA President, Jenny Horne, Waits to Welcome the Group

Confirmation

The Supreme Court confirmation process was the first topic of conversation. Justice O’Connor told how, before her confirmation hearing, she met influential senators, including the then-Chairman of the Senate Judiciary Committee, Senator Strom Thurmond. When she met him at his Senate office, he said, “Now where is it you’re from? Arizona? I don’t think we’ve ever met.” At that point, Senator Thurmond called President Reagan, who had nominated Justice O’Connor for the Supreme Court. As she retold the Senator’s side of the phone conversation: “Mr. President? Now, I have this woman in my office. I think you nominated her. Do you really want me to see if I can get her confirmed? (pause) Yes, Mr. President.” Once he knew President Reagan really meant the nomination, Senator Thurmond worked to support her confirmation.

At Justice O’Connor’s confirmation hearing, television cameras and reporters were seated “fifteen deep. More than Watergate.” And although the hearing was “a nightmare” for her, the senators loved it because it put them on television for free. The Senate might have allowed the hearing to last forever – “I would still be there today,” Justice O’Connor said – except that Nancy Thurmond held a 3 p.m. tea that everyone wanted to attend, so they had to wrap it up. Justice O’Connor asked Nancy Thurmond, who was in the audience at the dinner, to stand. Justice O’Connor gave her the credit for getting the Senate to end the hearing and confirm the nomination.

OurCourts.org

So many activities keep Justice O’Connor busy since stepping down from the Supreme Court, she “flunked retirement!”  One of these projects is her interactive civics education website, OurCourts.org. “You wouldn’t think an old lady like me would be into internet gaming,” she joked. One game on the website allows the user to navigate a hypothetical First Amendment case through an appeal before a virtual U.S. Supreme Court that happens to include five women justices!

The idea for an educational website was sparked when Justice O’Connor became concerned by outcries over “activist judges.” She believes this criticism of “activism” stems from misunderstanding the meaning of “judicial independence,” and proper civics education could help. (She commended South Carolina for requiring civics in high school.)

Merit Selection

Justice O’Connor believes judges should not be elected. She says the framers of the Constitution intentionally set up the federal judicial branch to be appointed, not elected. The framers’ reasoning is in the Federalist papers:  judges must be free to make decisions based on the Constitution and laws, without fear of retribution from the other branches. Most of the original states set up their state judiciaries to have appointed judges, until Andrew Jackson came along. (“He saved the nation, but didn’t save the judiciary’s independence.”) First Georgia began electing judges, and the concept spread to other states. Justice O’Connor is concerned about the millions of dollars in campaign contributions in a recent Illinois appellate court campaign, which could influence case results by creating judicial bias, as in the West Virginia case of Caperton v. A.T. Massey Coal Co., Inc., 129 S. Ct. 2252 (2009). She now wants to persuade states that elect judges to change their judicial selection process to something like Arizona’s current process of merit selection and retention.

Justice O'Connor Discusses Her Causes

Alzheimer’s Disease

 Justice O’Connor’s husband has Alzheimer’s disease. She retired because he now needs full-time care, and most of their family is in Arizona. After retiring, she has served on a national commission to study Alzheimer’s and make recommendations to Congress. She concluded that we need to get together as a nation to get funding for research and improve treatment for Alzheimer’s. “We did it for tuberculosis. We’ve made headway with AIDS. We have to concentrate on this.”

National Parks

 In retirement, Justice O’Connor has also served on a national commission on the national parks. She called the parks “incredible” and “America’s greatest treasure.” Unfortunately, she says they are not protected well enough or supported economically enough to maintain them. Justice O’Connor recommended Ken Burns’ television series The National Parks: America’s Best Idea.

Justice O'Connor Answers Questions from the Crowd

Questions and Answers

Question 1. A request for Justice O’Connor’s advice to women law students and young women lawyers.

Work hard and become part of your community. Don’t just work by yourselves. Lawyers have skills. We know how to make things work. Think what effect you can have if you work together with your community.

Question 2. Was there ever a moment when Justice O’Connor was surprised by how far she had come?

When President Reagan called Justice O’Connor and said he wanted to nominate her to the Supreme Court, she was “shocked” because at the time, it was “inconceivable” for a woman to be on the Supreme Court. As she put it, “It took 191 years. You don’t exactly anticipate that.”

Question 3. A request from a lawyer in the Charlotte area for advice on how to change a system of judicial elections to merit selection.

“Put together some citizens, preferably some with some clout,” Justice O’Connor said. Voters want to keep their right to vote, and they can, in a system of merit selection plus retention elections. “Get judges in there and see how they do. If you don’t like them, vote them out,” she said. “That’s how you sell it.”

Question 4. How can a woman lawyer who is close to retirement respond to young women who think most of the battles for women’s rights have been won?

“It’s true — women have had to fight,” said Justice O’Connor. There was a big push to get the vote in the early twentieth century, but after that, women didn’t vote in big numbers. Next, women pushed for changes to hiring discrimination laws in the 1960s, and now, “we’ve relaxed again.” However, “when women decide there’s something they want, they’ll go get it.”

Question 5. How does a woman lawyer who is also a mother maintain balance?

“I wish I had the answer. It is so hard to be working, as a lawyer or as anything, and care for  children.” Justice O’Connor said that when she was raising her children, it was hard to find the time even to go to the hairdresser or get together with friends. “There’s no real answer, other than to realize it’s all worth it.” She loves being a grandparent; it’s “better than being a parent.”

Conclusion

Justice O’Connor wrapped up by telling the women lawyers of North and South Carolina, “You’re all doing a good job. You have two wonderful states. But there are not enough women in your legislatures!” Laughter followed, along with a standing ovation.

–Eve Ross, McNair Law Firm

The Honorable Diane P. Wood: Bringing the Constitution to Life for the Next Generation

Speech delivered at the SCWLA/NCAWA luncheon on October 1, 2009 in Charleston, South Carolina

Good afternoon. It will not surprise anyone here to learn that Karen Williams is the reason why I have the pleasure of visiting your beautiful city and, as Chief Justice Toal has said far better than I could, this inspiring conference. It is a great honor for me to participate in your meeting and to join you in recognizing so many remarkable women: Justice Sandra Day O’Connor, Judge Karen Williams, and Chief Justices Toal and Parker, to name only some. I know that the topic I’ve chosen for this luncheon talk – Bringing the Constitution to Life for the Next Generation – is one that is near and dear to Justice O’Connor’s heart, as it has been near and dear to mine for many, many years. As is perhaps true for many of you, my initial commitment to educating younger people about the legal system was a  natural outgrowth of my involvement in the education of my own three children. I took every opportunity I could to visit their schools, to talk to them and their classmates, and to answer their questions (whether those questions were about the O.J. trial, about Judge Judy, about L.A. Law, or about something they had heard on the news).

In recent years, thanks to my colleague on the Seventh Circuit, Judge William Bauer, I have become more formally involved in an organization in Chicago called the Constitutional Rights Foundation Chicago, or CRFC. CRFC describes itself as follows:

The Constitutional Rights Foundation Chicago (CRFC) works with elementary and secondary schools to develop critical thinking skills, civic participation, and commitment to the rule of law among young people. Nonprofit and nonpartisan, CRFC is a national leader in the design and implementation of quality law-related education … programs for local, national, and international projects. CRFC was founded in 1974 as part of the Constitutional Rights Foundation in Los Angeles and became an independent 501(c)(3) organization in 1990.

The CRFC website, www.crfc.org, goes on to detail the ways in which the organization reaches out to “our youngest citizens – elementary and high school students” – by providing student programs, teacher training, resource experts (primarily volunteer lawyers, judges, police officers, and other public officials), and innovative curricula that interested schools may use. So, for example, we estimate that in 2010 we will be involving more than 9,000 students and 700 volunteer attorneys in our Lawyers in the Classroom program. You may also be interested to learn that on September 17, 2009, the Illinois State Board of Education unanimously recognized the Illinois Civic Mission Coalition for developing the Civic Blueprint for Illinois High Schools – a document that you can also find on the CRFC website.

The same kinds of efforts are taking place all around the country, and even around the world. In Texas, for example (my adopted home state), there is an organization called Humanities Texas, which devotes considerable resources to supporting programs in the high schools that educate young people about the legal system. At Indiana University’s Mauer School of Law, in Bloomington, there is a program largely run by the law students called Outreach for Legal Literacy, which has well developed lessons and exercises for use in the sixth-grade classrooms throughout Bloomington. Two years ago, I participated in a program sponsored by the Civitas organization in Buenos Aires, Argentina, at which I gave a talk on the role of higher education in promoting human rights.

Educating children – in many countries especially educating women and girls – is critical to a well-functioning democracy. As I like to tell both the students and the teachers, law isn’t just for lawyers. The preamble to our Constitution begins with the words “We the People,” not “We the Lawyers,” or “We the Elites.” In the brief time I have this afternoon, I’d like to share with you some of the thoughts I’ve had about how we as lawyers and judges can ensure that the promise of those constitutional words is passed along to today’s young people.

To borrow a phrase from Charles Dickens, these are the best of times and the worst of times to carry out that task. They are the best of times, insofar as we have just seen a Presidential election in which young people from all over the country became deeply involved in the campaign of their choice and learned that their voice matters. But, although all of us hope this is coming to an end, they have also recently been the worst of times, as we have watched our economy struggle in a way that is unprecedented in living memory of all except a few senior citizens who still remember the Great Depression. In the wake of this severe economic downturn, people all over the country – certainly including the young people, who are worried about their future job prospects and economic security – are thinking seriously about what government can and should be doing to turn things around. The challenge before us is how best to take these developments, as well as more routine matters that touch upon constitutional rights, and move them into the classrooms.

Although at first glance it might seem that the law is too inaccessible, too specialized, or too erudite for the average student, that impression would be quite mistaken. In fact, the Supreme Court and the lower federal courts deal regularly with problems that any student would recognize immediately. By way of example only, I’d like to highlight three broad issues – fair procedures (as addressed in the Fifth and Fourteenth Amendments), the right to free speech under the First Amendment, and the right not to be subjected to unreasonable searches under the Fourth Amendment. The Supreme Court has spoken in all of these areas, and its cases have often involved the school setting. They provide excellent teaching material, because (as is normally true in the cases the Court hears), there are serious points to be made on both sides. Students exposed to these cases discover first-hand that the Constitution matters deeply to them, and that they have a responsibility (just as all citizens do) to live up to, and to uphold, the finest traditions of American government. I’ll take these topics in turn, beginning with procedures.

One point that is usually important to make for the students by way of introduction is that there are many rules that apply only to governmental actors – federal, state, or local. Second, it is worth underscoring for them that constitutional protection exists only for certain deprivations: life, liberty, or property (note – not “the pursuit of happiness” – they mustn’t confuse the Constitution with the Declaration of Independence). So, for example, a student could not complain of a deprivation of due process if she were assigned to Teacher Smith rather than Teacher Jones for Mathematics, even if everyone in the school thought that Jones is the better teacher. But if a student is suspended from school as a disciplinary measure, matters are different. As you know, students do have enough of a property interest in attending school to trigger the protections afforded by the Constitution. Finally, the question always arises “how much procedure is enough?” Classically, one needs notice, an opportunity to be heard, and an impartial decisionmaker. But the details can vary greatly – so greatly that the leading Supreme Court decision, Mathews v. Eldridge,[1] offers only the broadest guidance. It requires courts to balance the private interest that will be affected, the risk of error from using the procedures that are offered, the probable value of additional or substitute procedures, and the government’s interest (including the cost and burden of additional safeguards).[2]

Let’s look at some cases that have applied these principles, with the idea in mind of how best to transform them into teaching exercises for teams of students (perhaps one team per side, another team to serve as judges, and a team of jurors). One of the first and still one of the most important cases applying the principles of constitutional due process to the public school setting is Goss v. Lopez.[3] Goss held that an immediate suspension of a student without a hearing violated that student’s due process rights. The facts are interesting. At least nine named students, including Dwight Lopez, were suspended from school for 10 days for destroying school property and disrupting the learning environment. (Lopez actually testified that at least 75 students were suspended from the school on the same day; the Court had no occasion to decide which number was right, as this made no different to the ultimate outcome of the case). Ohio state law specified that schools had the right to suspend so-called problem students without a hearing. Lopez and the other named plaintiffs filed suit in federal court alleging that the suspension without a hearing violated their 14^th Amendment Due Process rights. Lopez also testified that he was not in fact a party to the destructive conduct, but an innocent bystander, and that this was something that would have come out in a proper pre-suspension hearing.

The Court held that, even though there is no federal constitutional right to a public education, this was not the end of the story. Ohio, like virtually every state, has chosen to implement a public education system, and it makes school attendance mandatory. Under these circumstances, Ohio could not deprive the students of their right to attend school without due process. Students have a legitimate expectation to education, and this is something that qualifies as a property interest protected by the 14^th Amendment. Once that much is established, it follows that the state cannot deprive the student of that interest without adhering to some minimum procedures. In fact, the Court also found that suspension without a prior hearing deprives the student of a liberty interest, given the fact that the student’s name and integrity is in question. The bottom line was that some kind of pre-deprivation hearing was constitutionally required. The risk of error, the Court said, is not trivial “and it should be guarded against if that may be done without prohibitive cost or interference with the educational process.”

My second example of a “teachable” cases is Mackey v. Montrym,[4] which dealt with the procedures that the state must follow when it suspends a person’s driver’s license. In May 1976, Donald Montrym was driving his car when he collided with another vehicle. The police officer who arrived on the scene observed that Montrym was glassy-eyed and unsteady on his feet; he was slurring his speech, and he smelled strongly of alcohol. Not surprisingly, the officer arrested Montrym on DUI charges. He took Montrym to the police station and asked Montrym to take a breathalyzer test, but Montrym refused. Later, Montrym thought better of it, and asked to take the test, but the police thought that he was too late and refused to administer the test. The relevant Massachusetts statute imposes a penalty of a 90-day suspension of the license of a person who refuses to take the test. In subsequent state court proceedings, the DUI charge was  dismissed.

At that point, Montrym’s lawyer told the Registrar of Motor Vehicles about the dismissal and requested that any suspension of his license be lifted. Unfortunately, however, the Registrar had no authority to stay a suspension, and so he directed Montrym to surrender his license immediately by mail. Montrym complied, but he also wrote a letter to the Board of Appeal, threatening to file suit if his license were not promptly returned. Montrym then sued the Registrar and asserted that Massachusetts had violated his 14^th Amendment Due Process rights by depriving him of his property rights (that is, suspending his license) without affording him a full pre-deprivation hearing.

Relying on the general Mathews v. Eldridge formula, the Supreme Court looked first at Montrym’s private interest in his driver’s license; second, it considered the risk of an erroneous deprivation of that interest given the procedures that the state was using, third, the value of any additional procedures; and finally, it weighed the governmental interests at stake. It acknowledged that Montrym had a significant interest in the continued possession and use of his license, but that this interest was tempered by the brevity of the deprivation and the availability of an immediate post-suspension hearing. The Court next observed that due process does not demand procedures that rule out every conceivable error. Ordinarily informal proceedings will suffice prior to an adverse administrative action, especially if the state makes available (as Massachusetts did) a full post-deprivation hearing. Finally, the Court took note of the important public safety interest underlying the Massachusetts law. The state obviously has an interest in deterring drunken driving. The breathalyzer test serves that interest by helping the authorities to obtain reliable evidence and to remove impaired drivers from the road promptly. Taking the time and money for a pre-suspension hearing would substantially undermine the state’s interest. The increase in hearings, the Court concluded, would impose a substantial fiscal and administrative burden on the state.

Many of these themes – the significance of the individual’s interest, the importance of the state’s interest, and the way the two might be reconciled – recur regularly in constitutional litigation. And, as we’ll see in the First Amendment cases, the Court has tried to be sensitive to the special problems raised by the youth of children at the pre-collegiate level and the unique responsibilities that school administrators and teachers have with respect to their students.

There are at least three lines of First Amendment cases that have arisen in the public schools: those dealing with freedom of speech, those dealing with freedom of the press, and those dealing with the Religion Clauses (the Establishment Clause and the Free Exercise Clause). Without meaning in any way to suggest that one group of decisions is less important or less interesting than another, I have chosen in the interest of time to focus on two free speech cases. My first case is Lamb’s Chapel v. Center Moriches Union Free School District.[5]  It arose in New York and involved the rules that the local school board had issued with respect to the use of school property when that property was not being used for school purposes. The Board of this particular district had enacted rules permitting after-hours use of its schools for two purposes: first, civic or recreational use, and second, use by political organizations. On two occasions, an evangelical church known as Lamb’s Chapel, and its pastor John Steigerwald, applied to the District for permission to use school facilities after school for purposes of showing a six-part film series of lectures by Dr. James Dobson. Dr. Dobson, according to a brochure that Lamb’s Chapel gave the District, was a best-selling Christian author and radio commentator. The series presented Dr. Dobson’s view that the media was undermining basic values, and that the only way to counterbalance these negative influences was by returning to traditional Christian family values. The Board refused Lamb’s Chapel’s request, on the ground that the film appeared to be church-related and the Board was forbidden by New York law from allowing after-hours use of facilities for religious purposes. Lamb’s Chapel sued, arguing that the District had offended its First Amendment free speech rights.

In a unanimous decision written by Justice White, the Court agreed with Lamb’s Chapel. The Court said that if the opinions expressed in the film had not taken a religious perspective, then undoubtedly the District would have given its permission for the after-school program presenting the films. What the District did, then (the Court said), was to deny the showing of the films because of the message they expressed. This was nothing more or less than viewpoint discrimination, which is strictly forbidden by the First Amendment. The Court was unmoved by the District’s argument that it should be permitted to deny the use of its property for the purposes of evangelical proselytizing because allowing proselytizing would lead to threats of public unrest and violence.

Contrast the Court’s approach to a different message in its 2007 decision in Morse v. Frederick,[6] known to many as the “Bong Hits” case. In January 2002, the Olympic torch relay passed through Juneau, Alaska, on its way to Salt Lake City, Utah, for the Winter Olympic Games. Because the torch was to proceed directly past Juneau-Douglas High School, Principal Deborah Morse permitted staff and students to leave class and watch the torch relay from the side of the street. Joseph Frederick, then an 18-year-old senior at Juneau-Douglass High School, arrived late to school on the day of the torch relay. When he arrived, he immediately joined his friends on the side of street opposite to the school. As the torchbearers and camera crews passed by Frederick and his friends, they unfurled a 14-foot banner that read “BONG HiTS 4 JESUS.” Morse immediately crossed the street and demanded that the banner be taken down; everyone but Frederick complied. Morse then confiscated the banner and told Frederick to report to her office. When he got there, he learned that the principal was suspending him for 10 days. Morse’s explanation for suspending Frederick was that the banner encouraged illegal drug use in violation of school policy. Frederick appealed his sentence to the Superintendent of the school district, who upheld the suspension, agreeing with Principal Morse’s reasoning. Frederick then filed suit in federal court, arguing that the school board and Morse had violated his First Amendment rights.

The case eventually made its way to the Supreme Court, where the question was whether Frederick had a right protected by the First Amendment’s free speech provision to hold up his banner as he did. The majority held, in an opinion authored by Chief Justice Roberts, that Morse did not violate Frederick’s free speech rights because the banner was displayed during a school-supervised event, making the case a “school speech” case, rather than a “normal” speech case involving speech in a public place. In so holding, the Court distinguished an earlier case dealing with the free speech rights of students, Tinker v. Des Moines Independent Community School District.[7] In Tinker, the Court had famously written that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” And the Court found that enforceable rights existed in Tinker: it held there that students could not be suspended for wearing black armbands as a symbol of opposition to the War in Vietnam.

In Frederick, however, the Court saw a more complex situation. It began with the proposition that the First Amendment rights of students in K-12 schools are not as broad as those of adults in other settings. Although the Court’s majority acknowledged that the “Bong Hits” message was cryptic (Frederick insisted that the message had no meaning and that it was simply an attempt to get the attention of the cameras), the Court saw it as a clear reference to illegal drugs. Furthermore, the Court held, it was reasonable for Principal Morse to conclude that Frederick’s banner advocated the use of illegal drugs.

At that point, the Court was on familiar ground. The government, it said, has an important, “perhaps compelling” interest in deterring drug use by students; the problem of youth drug abuse is a serious one. One purpose of a school is to educate students about the danger of illegal drugs and to deter their use. Peer pressure is thought to be a central reason for drug use, and, the Court thought, Principal Morse was entitled to view the banner as a type of peer pressure. Chief Justice Roberts wrote that Morse’s action of removing the banner and suspending Frederick “would send a powerful message to the students in her charge, including Frederick, about how serious the school was about the dangers of illegal drug use.” The First Amendment, he summed up, “does not require schools to tolerate at school events student expression that contributes to those dangers.”

One question that these two cases leave open – and that could provide excellent material for a student debate – is the extent to which school administrators are entitled to regulate the content of student speech, or speech to which students are exposed. We have an example of content regulation in Frederick, and we have a counter-example of a refusal to regulate on the basis of content in Lamb’s Chapel. Students could explore what the real difference is. Is it the message – potentially encouraging illegal or unhealthful behavior in one case, while advocating a particular religious message in the other? Is it the identity of the speaker – a student in one case, and an adult provider of an after-school program in the other? Is it the age or maturity of the students – and if it is this, then why should someone who is legally an adult (that is, over the age of 18, as Frederick was) be subject to the same regulations as a younger person? These and other cases give ample room for discussion about the scope of the First Amendment Speech Clause and what it means for students.

Finally, we come to the Fourth Amendment – always a fruitful area for constitutional discussion, because the factual variations in the cases are endless, everyone has watched television shows where the police knock on a door and announce “We have a warrant,” and the national debate about the proper limits of police power over private spaces is more intense today than ever. I’m going to describe three cases for you – one arising from the school setting, one that is more general, and one that the Supreme Court has just heard.

The first is called Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls.[8] It involved a challenge by a student to the policy of the school district of Tecumseh, Oklahoma, that required all middle and high school students to consent to drug testing by urinalysis as a condition of participating in any extracurricular activities whatsoever, including not only athletics, but also the Academic Team, Future Farmers of America, Future Homemakers of America, band and choir. Under the policy, students had to consent to random drug testing at any time. The tests were designed to detect only the use of illegal drugs, including amphetamines, marijuana, cocaine, opiates, and barbiturates, not medical conditions or the presence of authorized prescription medicines. Lindsay Earls, a member of the Academic Team, show choir, marching band, and National Honor Society brought suit in federal court challenging the policy as contrary to his Fourth Amendment rights.

The Court held that the policy did not violate the Fourth Amendment’s guarantee against unreasonable searches. The policy, it found, reasonably served the school district’s important interest in detecting and preventing drug use among its students. Justice Thomas, writing for a 5–4 majority, said that the affected students had a limited expectation of privacy because they were in a public school environment, where the State is responsible (and must be able to take effective measures) for maintaining discipline, health, and safety. Justice Thomas also concluded that the method of testing was not impermissibly intrusive because the urine samples were produced behind closed restroom stall doors, all results were kept in confidential files, and the test results were not turned over to any law enforcement authority. Finally, the Court considered the nature and immediacy of the district’s concerns and how effectively the policy might meet them. In language similar to what we saw in the later Frederick case, Justice Thomas noted that drug use was rampant in schools and that the Pottawatomie County district presented specific evidence of drug use in the Tecumseh schools. In light of that evidence and the nationwide epidemic of drug use, the Court held that the school district’s policy did not violate the Fourth Amendment.

The case of Chandler v. Miller,[9] decided five years earlier than Pottawatomie County, offers an interesting contrast. In Chandler, candidates for high state office in Georgia were required to certify that they had taken a drug test and that the result was negative. Before a person could have his or her name placed on the ballot for state-wide office, that potential candidate had to submit a form certifying that he or she had submitted to urinalysis and that the results were negative. Petitioners were Libertarian Party nominees for state offices including Commissioner for Agriculture, Lieutenant Governor, and the General Assembly; they argued that the urinalysis requirement violated their Fourth Amendment rights.

The Court agreed with the petitioners, stating that although the testing method was “reasonably non-invasive,” Georgia failed to show any substantial need for searching its political candidates in this way. The Court rejected Georgia’s argument that the testing was needed because drug use was incompatible with holding high office and because drug use drug use draws into question an official’s judgment and integrity. The Court found that Georgia did not present any “concrete danger” of drug use in state offices in Georgia and that, in any event, ordinary law enforcement methods would suffice to apprehend any individuals who were either addicted or scofflaws.

Last is a case that you will be discussing in more detail later in this program: Safford Unified School District #1 v. Redding.[10] Redding presented two questions: whether officials of the Safford Unified School District in Arizona violated the rights of eighth-grader Savana Redding, and whether those officials were entitled to qualified immunity for their actions. In brief, the events triggering the case arose when, in a search for prescription-strength ibuprofen pills, school officials required Savana to submit to a search in the nurse’s office during which her bare breasts and pubic area were exposed to female school officials. At no point did anyone find a single pill. Nor, interestingly, did the school officials try to contact her parents, either to find out whether she had a prescription for the alleged ibuprofen, or to permit them to come and assist her, or for any other reason. The Court ruled that “the content of the suspicion failed to match the degree of intrusion,” and thus that the search was unreasonable as the Fourth Amendment uses that term. It concluded, however, that the law prior to its decision was sufficiently unclear that the school officials were protected from liability by qualified immunity.

The Ninth Circuit Court of Appeals had ruled in Savana’s favor, in a split decision. The majority relied on an earlier Supreme Court case called New Jersey v. T.L.O.,[11] which upheld the right of school officials to conduct a search of a student’s purse, once the vice principal had reasonable cause to believe that the student had been smoking cigarettes in violation of school rules. The search revealed rolling papers suitable for use with marijuana. In T.L.O., the Court established a two-part inquiry for assessing the reasonableness of such searches. First, it said, “one must consider whether the … action was justified at its inception,” and then, one must determine whether the search as actually conducted “was reasonably related in scope to the circumstances which justified the interference in the first place.” This test was designed “neither [to] unduly burden the efforts of school authorities to maintain order in their schools nor authorize unrestrained intrusions upon the privacy of schoolchildren.”

Crucial in all of these cases is the level of generality at which analysis should take place. So, for example, you could ask your students to consider whether the key question is whether school officials may conduct a search for drugs, or is it whether they may conduct a strip search for ibuprofen pills that are the exact equivalent of two over-the-counter Advil tablets? Or is it some combination of those two questions? Is it enough to say that school officials must be permitted to take action against “drugs,” or are legal prescription drugs that are normally not abused different? Should it make any difference to either the initiation of the search or to its scope that another student told the school officials that she got some ibuprofen pills from Savana? Should it make any difference that the school officials had some experience with students becoming sick from pills they had received from other students, even though the officials had no reason to think that Savana was the source of those pills?

The Redding case gave the Court an opportunity, once again, to discuss where these lines are drawn. The fact that there was no obvious outcome undoubtedly persuaded the majority to recognize qualified immunity for the school officials – this time around. The facts will undoubtedly strike a sympathetic chord in both the students now attending high school and in the authorities who are faced with the daunting task of simultaneously respecting the privacy and growing autonomy of the adolescents in their care, and enforcing both the laws and reasonable policies against drug use. Like Morse v. Frederick before it, Redding presents a wonderful opportunity to teach students about the Constitution and why it matters to them.

*     *     *     *

We have had time only to scratch the surface of Supreme Court cases that raise constitutional issues of direct relevance to students. There are countless more such cases being decided every month in the district courts and courts of appeals throughout the country. Students can and should be interested in the Supreme Court’s business. Have them visit http://www.supremecourtus.gov, or http://www.scotusblog.com, and check out the cases before the Court. Every Term, the Court confronts a substantial number of cases of national, and even global, interest. Have them look at the website that Justice O’Connor’s group has created, www.ourcourts.org. Have them look at the Seventh Circuit’s website, where you can download the full audio of oral arguments plus the supporting briefs, to help create your own problems. The more intelligent, educated people are watching the Court’s work and responding to it critically, the better our democracy will work. Thank you.

 

 

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[1] 424 U.S. 319 (1976).

 

[2] Id. at 334-35 (internal quotation marks and citations omitted).

 

[3] 419 U.S. 565 (1975).

 

[4] 443 U.S. 1 (1979).

 

[5] 508 U.S. 384 (1993).

 

[6]  127 S.Ct. 2618 (2007).

 

[7] 393 U.S. 503 (1969).

 

[8] 536 U.S. 822 (2002).

 

[9] 520 U.S. 305 (1997).

 

[10] See Safford Unified Schl. Dist. #1 v. Redding, 129 S.Ct. 2633 (2009).

 

[11] 469 U.S. 325 (1985).

 

–Diane P. Wood, Circuit Judge, U.S. Court of Appeals for the 7th Circuit

Fourth Circuit Hears Arguments in Charleston

The Honorable Allyson K. Duncan and The Honorable Diana G. Motz, U.S. Court of Appeals, Fourth Circuit

A panel of the 4^th Circuit, consisting of Judge Motz, Judge Duncan, and District Court Judge Currie, heard one civil and two criminal appeals at the Federal District Court in Charleston, South Carolina on September 30, 2009 in conjunction with the SCWLA/NCAWA Conference.   

The bench was hot, and after all the arguments were completed and the attorneys left the room, the panel opened the floor for questions from the audience, which largely consisted of students from the Charleston School of Law and members of SCWLA. 

One question that Judges Motz and Duncan also later commented on during the CLE  dealt with the fact that many of the attorneys interrupted the judges during their questions, did not answer the questions asked, did not state their names and their parties upon approaching the podium, and did not stop talking when the red light went on.  In short, they did not follow the rules that all of us learned in law school.  The judges acknowledged the problems, and said that these are some of the worst mistakes appellate attorneys can make — mainly because it keeps them from being the persuasive advocates that their clients need.  The judges also acknowledged that they often have the same problem with their colleagues on the bench, with Judge Duncan mentioning a time when she could not get a question asked, and finally had to resort to raising her hand in hopes that the attorney would see it and know she had a question.  

During the CLE, the judges also reminded all of us that the last thing an appeals court should hear from counsel is what they want the Court to do — affirm, reverse, remand, etc. 

-E. Katherine Wells