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 14th 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 14th 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 14th 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.
[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
