Readings and Materials

AMERICAN SOCIETY
AND THE LAW

St. John's Preparatory School

History Department

To be used for educational purposes only

Revised 2008

TABLE OF CONTENTS
Reading and Materials: American Law and Society

The United States Constitution

and the Legal System_ __ _ _ _ _ _ _ _ _ _ _ _l

I.

II.

The First Amendment

Ill. Criminal Procedure

IV. Criminal Law
V.

------------ - --- 21

---------------------52

-------------------------82

Fifth and Fourteenth Amendment - - - - -- - 106

VI. Civil Rights Act of 1964 _ _ _ _ _ _ _ _ _ _134

THE UNITED STATES CONSTITUTION

AND
THE LEGAL SYSTEM

The Law Mindwalk

1 woke up today to the sound of my clock radio -- 6:00 am. As I made my bed, I laughed at the tag attached
to my mattress: "Do not remove under penalty of law." Ha! How ridiculous-- police in my bedroom!
I couldn't decide what to wear today, remembering that our class was going on a science field trip in the
afternoon to take water samples at a river several miles from our school. Should I wear my new or old
sneakers? After phoning a friend and reading an email from another, I decided on the old ones.
For breakfast, I drank some orange juice and ate a bowl ofWheaties. Since, I still had some time before
the school bus would arrive down the block, l decided to take my dog for a short walk around the comer to
the mailbox to mail some letters.
On the way, I stopped at the convenience store to buy something for lunch, since I wouldn't be eating in the
school cafeteria today. At the store, I noticed the new advertisement tbr the state lottery and wished for a
moment that I was old enough to buy a ticket-- I knew 1 could win! I glanced at the headlines of the
newspaper: Congress Addresses Health Care Concerns. Then I noticed that the clerk bad posted new signs
about the penalties for minors who try to purchase cigarettes and alcohol
Yesterday r remember that my science teac.her had told our class that the skills we would use in taking
water samples would help us on the state science exam at the end of the year. Our language arts teacher
added that our lab reports would help prepare us for the state writing exam.
l lost track of time so I missed the bus. I bad to ask my older brother to take me to school in his car on his
way to high school. He said he would take me. So he got a cup of coffee and I got in his car and fastened
my seat belt 1 glanced at the gas gauge and told him that it might be a good idea to fill up with gas on the
way. I couldn't wait until I would have my driver's

just

2 more years-- and my own credit card!

The 7:00am newscast began with a report on the Kyoto Protocol, a treaty requiring nations to limit the
amount of greenhouse gasses emitted into the air which President Bush, who lost our state's electoral votes
in November. has refused to sign. The news from our state included a report on several crimes committed
recently and an update on a high profile trial involving the deatl1 penalty.
Eu route to school, we saw the police stop a driver-- most likely for speeding, I thought. The man got out of
his car and began to use his cell phone, probably to tell someone he was going to be late for worlc! We
noticed a number ofbouses for sale. Traffic was slow because workers were repairing the main street on
our route to school.
I made it on ttme to my first period class-- social studies. The teacher told us to open our books to
the chapter about federalism and asked us to what extent we think law affects our lives. I thought
for a minute, raised my hand and said, "Not much-- unless I rip the tag off my mattress!"

The Case of the Shipwrecked Sailors

Three sailors on an ocean-going fre ighter were cast adrift in a life raft after their ship sank dming a storm. The
.> hip went down so fast that there was no time to send out an SOS. As far as the three sailors knew, they were
the only survivors. In the raft, they had no food or water. They had no fishing gear or other equipment that
might be used to get food from the ocean.
After recovering from the shock of the shipwreck, the three sailors began to discuss their situation. Dudley, the
ship's navigator, figured that they were at least one thousand miles from land and that the storm had blown them
far from where any ships would normally pass. Stephens, the ship's doctor, indicated that without food they
could not live longer than thirty days. The only nourishment they could expect was from any rain that might fall
from time to time. He noted, however, that if one of the three died before the others, the other two could live
awhile longer by eating the body of the third.
On the twenty-fifth day, the third sailor, Brooks, who by this time was extremely weak, suggested that they all
draw lots and that the loser be killed and eaten by the other two. Both Dudley and Stephens agreed. The next
day, lots were drawn and Brooks lost. At this point, Brooks objected and refused to consent. However, Dudley
and Stephens decided that Brooks would die soon anyway, so they might as well get it over with. After thus
agreeing, they killed and ate Brooks.
five days later, Dudley and Stephens were rescued by a passing ship and brought to port. They explained to
authorities what had happened to Brooks. After recovering from their ordeal, they were placed on trial for
murder. T he state in which they were tried had the following law: Any person who deliberately takes the life of
another is guilty of murder.

')uestions:
A. Should Dudley and Stephens be tried for murder?

B. What arguments would you make on their behalf?

C. What arguments would you make on the state's behalf?

D. lfthey are convicted what should their punishment be?

E. What purpose would be served by convicting Dudley and Stephens?

F. Was it morally wrong for Dudley and Stephens to kill Brooks?

G. Can an act be legal but immoral? Can an act be morally right but unlawful? Explain.

LAW AND AMERICAN SOCIETY

"The law must be stable, but it must not stand still"
Roscoe Pound
Law: Rules and regulations made and enforced by government to regulate
the conduct of people within a society.
be based on the "rule of law" and no one is
above the law" No one i'l above 1he !t."1l'.

Society must

True?
Jurisprudence: The study of legal philosophy
Laws generally reflect and prommz a :>oci.tly s talues; our concept of
right v. wrong.
We expect our legal system to achieve goals of:
Protect
0
0

Promote
0
0

Help
0

Represent
0

Laws must balance rights with responsibilities

The Will ofthe Majority v. Needs of Minority
Need for Order v. Need for Basic Human Rights
As a Society' s values change, so may the laws: "The law must not stand still."
Examples of changing bodjes oflaw:

Remember: Although we all have certain rights as humans and as citizens of the United
States, those rights are not absolute.
Examples:

Balance Rights

v. Responsibility

And, although no one is above the Jaw, laws must be balanced as welJ:

Balance a Law's Burden on an Individual v. its Benefit to Society

Consider the first ten amendments to the Constitution, referred to as the BiU of Rights.
What rights are established in each amendment?

The town of Beautifica has established a lovely park in the city limit.
The city council wishes to preserve some elements of nature, undisturbed by the city
noise, traffic, pol1ution, and crowding. The park is a place where citizens can go and fmd
grass, trees, flowers, and quiet. In addition, there are playgrounds and picnic areas. The
city council enacts a law requiring that at all the entrances to the park the following sign
is to be posted: NO VEHICLES IN THE PARK Beautifica prides itself on its law abiding
citizens. You are on the city council. At an open meeting the following scenarios are
presented for rulings in consideration of the new law. Explain your ruling and rationale.

John Smith lives on one side of town and works on the other. He will save ten
minutes if he drives through the park.

There are many trash barrels in the park for collecting litter. The sanitation
department wants to drive a truck in to collect the trash.

Two police cars are chasing a suspected bank robber. If one police car cuts
through the park, it can get in front of the suspect's car and trap it between the
patrol cars.

An ambulance is racing to the hospital with a dying patient. The shortest route

is through the park.

Some children who visit the park want to ride their bicycles there.

Jane Thomas wants to take her baby to the park in a stroller.

A monument is being erected to the town' s citizens who died in the Vietnam
War. A tank, donated by the government, is to be placed beside the
monument

Amul had both legs amputated and uses an electric wheelchair, He wants to
visit the park.

Re-write the law to make it more effective:

Right to:

Right to:

Right to:

Right to:

First
Amendment
Second
Amendment

Third
Amendment

Fourth
Amendment

Fifth
Amendment

Sixth
Amendment

Seventh
Amendment

Eighth
Amendment

Ninth
Amendment

Tenth
Amendment

The Bill of Rights protects citizens from the power ofthe Federal Government, not from
private individuals.

THE CONSTITUTIONAL FRAMEWORK: The oldest written national

constitution in tbe world, and the highest law in The United States.
The U. S. Constitution Limits the Power of Government:
How: Separation of Power

to

Q{!j

,'

'

..

.I

\

'.

;...,

.

'
:-

.
I"

i,

.
I

Executive Branc/r: Follows the laws

Legislative Branclr: Creates the Jaws
Judicial Branch: Interprets the laws
Checks and Balances: Each branch bas the power to restrain the other
Checks: veto- President's right to refuse to approve laws passed
by Congress
J udiciaJ Review - Judiciary's right to nullify a law passed
by Congress if it conflicts with the Constitution, therefore it is the
duty of the Judicial Branch to interpret the U.S. Constitution in
light of the framers ' intent when the laws were written.

E.g: .....the right to bear arms..." v. gun control advocates

The U.S. Constitution is a masterfully crafted document which has only been amended 27
times since its creation in 1787.
By reviewing the amendments one can trace the evolution and changes in
American Society.

Why are there so few amendments? Does this indicate the culture has not
changed as much as we sometimes believe?

What is the process for implementing a constitutional amendment?

What have been some recent proposals for amendments, and how do those
proposals stand today?

THE UNITED STATES SUPREME COURT

"At the constitutional. 1eve1 where we work, 90 percent of any
decision is emotional. . The rational part of us supplies the
reasons for supporting our pred.i1ections.,.
Justice Wi.11iam 0. Douglas

U. S. Supreme Court is the highest court in The United States, and the only court
established by the Constitution (Article III).
How does one become a Supreme Court Justice?
Why is the profile of the Court of national interest and/or concern?

Current membership
Below is a table of current active Supreme Court Justices, in order of seniority:
Name

Photo

Date of
Age
birth

Home
state

F. td
Appt. by Conf.
1rs
ay
t
vo e

Prior
positions
Lircui.t
Cour:..

of
for du. D.C.

Circui.

Private
practice

( 1993- 2003 );

Jyh"!

(_hid .
Justk:c)

lUillY:

2l 1955
-'
----

Prinl..W
Dcpntv
Solie;tor
St.:\tetnL'Cl Gc1:cral

.
52 ?viu.:"vl a.nd C.\\. Hush 78-22 1005

(1989-1993);

Private
practice

(1986-1989);
t\.
Comv.;d tu

the Prcstdem

(1982- 1986);

J\ssisant tu
th(! l\ttOTiiCt

(1981- 1982)
Ciicuit

Juqge.
of Appeals

.

A1W.l20,
87
1'.>21)

Forti

(Qt.Jhe
December
98-0
Jlr/j f-.'ircuit

(1970-1975);
Private
practice

(1948-1970);

Lecturer,
uiverslt) of
Chil!a!)Cl Law

ScttQQl

(1 950-1954);

Lecturer,
Nordlr c:;l.:m
Umvc.sjry
of
J_.av; (19541958)

Circ:Jit
!

0f

D.C.

( 1982-1986);

Professor,
t ln1vcr:nl" _of
Chtcag..., 1 av.

---

!V&arch

lg36

LL

Schcd

71

98-0 (1977-1982);
66

12

(1974--1977);

Professor,
{ lnivetsit
of

Vmrinia

Schoolcl

La<,.: (1967-

1974)
Circuit

of N.!!JeaL
fi>r the l':inth

!.U!)_

2irct<it
(1975-1988);

.Tulv 23,
193(!

71

California
---

97-0

February Professor,
1.8_, 19&8

School
Law,
L uive1-sirv uf
Ute
(1965- 1988);
Private

/[}

practice

(1963-1975)

Judge. Cou..rt

,,f

ror Uw

Cm:uit

(1990-1990);
Associate

Justice, Ne"v

:).uvrcme

f'nurt (1983-

1990);
Associate
Justice, N.:-\.

t. oun

( 19781983);

Nev

.!1, J93:J

nush

67

G.;tV/.

90-9

Qct.>b...;r_i, 1\Uomer
..:..2()0
[.eoer::l 0 r
Nev

(1976-1978);
fJcputv
A!.!..l.'JJ:ln

_;:}cne:ral oi

-\l...w

flampshirc

(1971- 1976);
Assistant
Attorney
G<.7lcral ot

l irunpsh.ilr

Private
practice

'l':httmce
J',iutmn.i.

( 1966-1968).
rircui!.
Judr!e. Court

'

'Junl.! :!3,

]9..;.8

Buh

Uclobcr

vf .!\.ppcas

52-48 .,, for the D.C.

f:ircuit
(1990-1991);

I/

Chairman,

1k\uat

QnpotLUnity

Lo.ru.nissiou
(1982-1990);
Legislative
Assistant for

.:>enato1

L<.W...n

lJarifonll;
(1979-1981);
employed by

Inc. ( 19771979);
sl.aut
l\ttO!IU:)

Ckncra! of

under
Att(JllJ!:.Y
General Johq

0anfortb
( 1974-1977)

J (:,mrl
uf
1or
C.i.rcui!:
(1980-1993 }:
General

97-3

August

w,

Amenta'!
Cl_vil

Union
(1973-1980);
Professor,

Columbm.
Schoo)
( 1972- 1980);
Professor,

R.At!lers
U.uivcrsity

/2

(1963-

1972)
CJuet Jw.l{!,b
Court of

\!'

fi)f

Jl!e l'itst
C\mu.li
(199{}-1994);

87-9

f's;-e7':JL

Judae. C_our(

I 'Jl)t:

gf APQ.:dc;
t(Jf the f rsL

t 'in.:uit
(198{}-1990);
Professor,
H<!_rv:J d bm

{1967-1980)
Llft:UI.

Lus.i.f-c. Corn".:
of t\p.Qeds

lo1 lhc Tbirq

( 199{}-2006);
Professor,
Sdlnd1!:!ll

Univcrsitv
.Sdroul of
(1999-

2004);

u.s.

for

L

1950

"'
h 58-42 d.l,
J<Jnutu-v,!!
li.
v:. l

100

the District

of New
Jersey

(1987- 1990);
Depuw

'Jenera}

(1985- 1987);
Assistant to
lhc Solichor
General.
(1981- 1985);

)2

What is the process a case follows in order to be heard by the Supreme Court?
Writ of Certiorari
Issue:
Standing
Majority Opinion
Concurring Opinion
Dissenting Opinion

How to Brief a case:

Facts:
Question?
Reasoning:
Conclusion:
Concurrence (if any exists):

Dissent (if any exists):

Read the following case of Miranda v. U.S.

Complete a brief for the case according to the above pattern. There is not a concurrence
in this opinion.

Miranda v. United States (U.S. S.C. 1966)

Emesto Miranda was a poor Mexican immigrant who lived in Arizona in 1963. A woman accused
Miranda of committing a crime against her. The police arrested Miranda and asked him questions
about the crime for two hours.
In the United States, people who are accused of crimes have certain rights granted by the
Constitution. The Fifth Amendment of the Constitution says that they have the right to be silent.

The Sixth Amendment of the Constitution says that they have the right to have a lawyer to help
defend themselves .
The police did not tell Miranda that he had these rights when they arrested him . After the police
were finished asking Miranda ques(ions, he signed a confession. The police used his confession
in the trial and Miranda was convicted of the crime. The judge decided he should serve 20 to 30
years in prison for each crime.
Miranda appealed his case to the highest court in Arizona, called the Supreme Court of Arizona.
His attorney argued that his confession should not have been used as evidence in his trial
because Miranda had not been informed of his rights, and no attorney had been present to assist
him during his interrogation. The Arizona Supreme Court denied his appeal and upheld Miranda's
conviction. The case was appealed to the United States Supreme Court.
The case was decided 5 to 4.
Chief Justice Warren delivered the opinion of the Court.

The case before us raises questions which go to the roots of our concepts of American criminal
jurisprudence: the restraints society must observe consistent with the Federal Constitution in
prosecuting individuals for crime. More specifically, we deal with the admissibility of statements
obtained from an individual who is subjected to custodial police interrogation and the necessity for
procedures which assure that the individual is accorded hfs privilege under the Fifth Amendment
to the Constitution not to be compelled to Incriminate himself.. ..
Our holding is this: the prosecution may not use statements, whether exculpatory or inculpatory,
stemming from custodial interrogation of the defendant unless it demonstrates the use of
procedural safeguards effective to secure the privilege against self-incrimination .
The Fifth Amendment privilege, [which states that no person shall be compelled in any criminal
case to be a witness against himself] is so fundamental to our system of constitutional rule and
the expedient of giving an adequate warning as to the availability of the privilege so simple, we
will not pause to inquire in individual cases whether the defendant was aware of his rights without
a warning being given . . ..
The warning of the right to remain silent must be accompanied by the explanation that anything
said can and will be used against the individual in court. This warning is needed in order to make
him aware not only of the privilege, but also of the consequences of forgoing it. . .. [r]his warning
may serve to make the individual more acutely aware that he is faced with a phase of the
adversary system-that he is not in the presence of persons acting solely in his interests . .. .
. . . [W]e hold that an individual held for interrogation must be clearly informed that he has the
rlght to consult with a lawyer and to have the lawyer with him during interrogation under the.
system for protecting the privilege we delineate today.. .. No amount of circumstantial evidence
that the person may have been aware of this right will suffice to stand in its stead: Only through
such a warning is there ascertainable assurance that the accused was aware of this right.
If an individual indicates that he wishes the assistance of counsel before any interrogation occurs,
the authorities cannot rationally ignore or deny his request on the basis that the individual does
not have or cannot afford a retained attorney.... The privilege against self-incrimination secured
by the Constitution applies to all individuals .

. . . [W]e hold that when an Individual is taken into custody or otherwise deprived of his freeqom

/5

by the authorities in any significant way and Is subjected to questioning, the privilege against selfincrimination is jeopardized . .. .

Mr. Justice Harlan, wlth Justices Stewart and White joining, wrote the main dissenting
opinion.
I believe the decision of the Court represents poor constitutional law and entails harmful
consequences for the country at large. How serious these consequences may prove to be only
time can tell. But the basic flaws in the Court's justification seem to me readily apparent now once
all sides of the problem are considered .. ..
Without at all subscribing to the generally black picture of police conduct painted by the Court, I
think it must be frankly recognized at the outset that police questioning allowable under due
process precedents may inherently entail some pressure on the suspect and may seek
advantage fn his ignorance or weaknesses . . .
What the Court largely ignores is that its rules impair... an instrument of law enforcement that has
long and quite reasonably been thought worth the price paid for it. There can be little doubt that
the Court's new code would markedly decrease the number of confessions. To warn the suspect
that he may remain silent and remind him that his confession may be used in court are minor
obstructions. To require also an express waiver by the suspect and an end to questioning
whenever he demurs must heavily handicap questioning. And to suggest or provide counsel for
the suspect simply invites the end of the interrogation.
How much harm this decision will inflict on law enforcement cannot fairly be predicted with
accuracy . .. _We do know that some crimes cannot be solved without confessions, that ample
expert testimony attests to their importance in crime control, and that the Court is taking a real
risk with society's welfare in imposing its new regime on the country. The social costs of crime are
too great to call the new rules anything but a hazardous experimentation ....
Nothing in the letter or the spirit of the Constitution or in the precedents squares with the heavyhanded and one-sided action that is so precipitously taken by the Court in the name of fulfilling its
constitutional responsibilities. The foray which the Court makes today brings to mind the wise and
farsighted words of Mr. Justice Jackson in Douglas v. Jeannette: "This Court is forever adding
new stories to the temples of constitutional law, and the temples have a way of collapsing when
one story too many is added."

I&

TYPES OF LAWS AND THE COURT SYSTEM

There are two categories oflaw: Civil and Criminal. Each is intended to regulate
conduct and relationships between people or between the state and its citizens.

Civil Laws- Regulate relations between individuals or groups of individuals. A

civil action is brought by a person who feels wronged or injured by another
person.

The Plaintiff files a suit against the the Plaintiff is the wronged
party and the Defendant allegedly caused the harm through his actions or in
failing to act.

Plaintiff must prove Defendant' s wrong doing by a preponderance of the

evidence (in Massachusetts, by 51% or more).

Court awards $$$ compensation to injured party

Parties may settle a case, that is, agree on an amount that satisfies the injured
party, therefore eliminating the need for trial.

Criminal Laws -Regulate public conduct and sets out duties owed to society by
those interacting with society.

A criminal case is brought by the government (Prosecution) against a person

(Defendant) who allegedly violated the government's laws of conduct.

Prosecution must prove Defendant's guilt beyond a reasonable doubt to a

judge or jury of his peers.

Burden of proof res ts with Prosecution

Two classes of criminal offenses

o

Felony:---- - - -- - - - -- - - -

o Misdemeanor:- - - - - -- - -- - --

If found guilty beyond a reasonable doubt, Defendant' s outcome is punitive.

17

Prosecution and Defendant may plea bargain in order to avoid trial.

A party may be tried for both criminal and civil wrongs derived from the same
event. They are tried separately jn court and treated as separate actions.

Examples:

Notes:.

Which Court?
lf a matter concerns a state law, the case will be heard in state court.

If a matter involves parties from different states (diversity). or involves more than
$75 ,000, it may be heard in federal court

If a state court decision involves a Federal law or Constitutional it may be

appealed to the U.S. Supreme Court.

Remember: The Court System is an Adversatial System, therefore the outcome is never
set in stone prior to the trial. (So, trials, by nature are risk'Y contests with no guarantees).
For that reason, out ofthe large number of cases filed in court. very few actually go to

triaL

Law & Legal Issues

INTRODUCTION TO THE CIVIL JUSTICE AND CRIMINAL JUSTICE

SYSTEMS

KEY
QUESTIONS

CIVIL JUSTICE
SYSTEM

CRIMINAL JUSTICE
SYSTEM

What (whose)
interests are
protected?

Who are the parties

to the case?

What standard of
proof is required?

What are the

penalties?

How does the Bill of

Rights help ensure
fair trials?

17

Matt and Luther decide to skip school. They take Luther's brother's car without
telling him and drive to a iocal shopping center. Ignoring the sign "Parking for
Handicapped Persons Only", they leave the car and ender a radio and TV shop.
After looking around, they buy a portable AM/FMJCD playing radio. Then they
buy some sandwiches from a street vendor and walk to a nearby park. While eating, they
discover that the radio does not work. In their hurry to return it, they leave their trash on

the park bench.

When Matt and Luther get back to the shopping center, they notice a large dent in
one side oftheir car. The dent appears to be the result of a driver's carelessly backing out
of the next space. They also notice that the car has been broken into and the tape deck
had been removed.
They call the police to report the accident and theft. When the police arrive, they
seize a small clear bag containing illegal drugs from behind the car's back seat. Matt and
Luther are arrested.
Identify the issues:

For which actions did Matt and Luther violate civil laws?

Criminallaws?

THE FIRST AMENDMENT

ESTABLISHMENT CLAUSE
EXERCISE CLAUSE
FREE SPEECH

FIRST AMENDMENT

Congress shall make no law respecting

an establishment of religion, or
prohibiting the free exercise thereof; or
abridging the freedom of speech, or of
the press; or the right of the people
peaceably to assemble, and to petition
the Government for a redress of
.
gnevances.

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First Amendment Rights in Everyday Life

Each scene below deals with a First Amendment right in an example from everyday
life. Read each example. In the blank in front of the paragraph, write which First
Amendment right the example illustrates:
religion

assembly

speech

petition

press

1._ _ _ __ _ _

Yolanda Highsmith operated a newspaper for the

African-American community in a large city. In
her newspaper, she often criticized the mayor and
city council.

2._ _ _ _ _ __

Rick Jackson stood in front of an oil company's

office. He held a sign that said "Don't buy oil from
polluters."

3._ _ _ _ _ __

Twenty-two high school students met in the park

across from school to protest the firing of the
basketball coach.

4._ _ _ __ __

Roland and Marybetb wore black armbands to

school to show support for political prisoners in
South Afiica.

5._ _ _ _ _ __

Mr. and Mrs. Stuart taught their three children at

home because their church does not approve of

public education.
6._ _ __ _ __

Jack and Maria refused to bow their heads during

the prayer that began a session of the state
legislature.

7._ _ __ _ __

Li Chen went from door to door, asking people to

write letters to the president protesting government
policies concerning the homeless.

8 _ _ __ _ _ _

Kendal1 and Roxie printed and handed out fliers

describing the unfair hiring practices of a local
business.

9. _ _ _ _ __ _

Rachel and LaTisha used the Internet at their

public library to do research for a class assignment
on the way the federal government works.

Z-3

The Establishment Clause:

"Congress sliaJI make no law Tespecting an estJlblishment of religion. .. ,.

Limits governmental action of two types:

1.

2.

Separatist Theon: separa.tion of church and state

wall of Thomas Jefferson
Why?

Everson v. Board ofEducation, 330U.S.l,9-16 (1947).

Government has no p o w e r - - - - - - - - - - - - - - Government bas no right _ _ _ _ _ __ __ _ _ __ _ _
Government may pass no l a w s - - - - - -- -- - - - - Government may not support financially or otherwise _ _ _ __

Nonpreferentialist Theory:
Breaks down the Wall of Separation
Government may provide aid to religion and religious institutions as long
as the government does not prefer any one religion of group of religions
over another.
Wallace v. Jaffree, 472 U.S. 38, 91 (1985).

While government may not discriminate between religions, it is

ftee to promote religion in general.

How are both the separatist theory and Nonpreferential theory evident today?

THE LEMON TEST (The remains ofthe Separatist Model)

Lemon v. Kmtzman, 403 U.S. 602 (1971).
Governmental action
Must have a secular purpose
Must have a primary effect that neither advances nor inhibits
religion, and
May not foster excessive ent;mglement with religion

Congress shall make no law respecting an establishment ofreligion ...

The Establishment Clause is understood to mean that government must remain neutral when it
comes to religion.

That means that government cannot endorse- or appear to endorse - any religion or any
religious practice.

It also means that government cannot appear to disapprove of religion either.

Furthermore, government cannot give the impression that it endorses religious belief over
non-belief or any particular belief over other beliefs .

In order for a policy or law to be considered acceptable under the Establishment Clause, the U.S.
Supreme Court came up with three questions that must be answered "yes" (from Lemon v.
Kurtzmann, 403 U.S. 602, 1971):

Does the policy in question have a secular purpose?

Will the policy in question have a primacy effect which neither advances nor inhibits
religion?

Does the policy in question avoid entangling government and religion?

2-5

FIRST AMENDMENT ISSUES

THE ESTABLISHMENT CLAUSE

1. The State of Amity adopted a statute requiring a moment of silence at the beginning
of each school day. One ofthe purposes of this law is to provide students with an
opportunity to pray in school. Another purpose is to create a calming atmosphere in the
classroom in order to better promote learning. Does this statute violate the first element
of the Lemon Test? The second? The third? Explain:

2. The State of Amity has adopted legislation providing salary supplements to parochial
school teachers who teach purely secular subjects (e.g., mathematics) in otherwise
sectarian schools. The purpose of the supplement is to achieve parity between the salaries
of such teachers and their public school counte:zparts. In order to ensure that the state
money is not being tL-;ed to advance sectarian goals, such as the teaching of religion, all
parochial schools with teachers participating in this program must agree to intennittent
inspections by state officers. Does the substance and prnctice of this legislation violate
the Lemon Test? Explain.

3. The City School Board has decided with overwhelming support to promote the
religious doctrine of Christianity within its school system. Although students attending
City schools will not be required to profess their acceptance of all students
will be required to take courses on New Testament theology, and aU classes will be
taught with an underlying theme of Christian faith. Does this program violate the
Establishment Clause?

4. City has adopted a Sunday closing law that prohibits the operation of any
"nonessential" businesses on Sundays. Most retail operations are included within the
prohibition. Does this law violate the Establis.h ment Clause on the ground that it grants a
preferred status to a particular religion or group of religions?

5. The City School Board has adopted a policy that mandates "a moment of silent
meditation or pr:ayerfl at the beginning of each school day. A student who is an atheist
challenges this policy on the grounds that it is designed to promote prayer in public
schools in violation of the Establishment Clause. Will he SUCCleed in his challenge?

THE FIRST AMENDMENT: The Free Exercise Clause

Congress shall make no law respecting an establishment ofreligion, or

prohibiting the free exercise thereof. . ,
14

! . Protects the right of individuals to worship as they choose

BUT: when the right to free exercise conflicts with other important
Interests, the First Amendment claim does not always win.
AS A RULE: a. religious belief is protected
HOWEVER
b. actions based on belief may be restricted

1. 1848 Mormon Case Wisconsin v. Yoder (1972)

Court Decision:

2. Santeria Religion Case:

Court Decision:

3. Native American Case (1990)

Court Decision:

Conclusion:. If government intentionally acts to interfere with religious practice,

the courts will almost always protect the religious practice.
Problem: Ensuring that a law does not establish a religion can interfere with free
exercise of religion and sometimes with freedom of speech

LEVELS OF SCRUTINY when determining constitutionality of law:

Strict Scrutiny: Cases discriminating against religion or a sect of

religion (Not a neutral law)

Rational Basis: Laws of general application that only incidentally burden

religion
LOOK AT TilE PURPOSE OF TIIE LAW

2-7

FIRST AMENDMENT- FREE EXERCISE CASES

Wisconsin v. Yoder
406

u.s. 208 (1972)

Facts of the Case:

Three Amish families sued the state of Wisconsin over its requirement that
children be enrolled in school until the age of sixteen. The parents refused to
comply by removing their children from school after they completed the eighth
grade and were convicted of violating the law. The families claimed that their rights
to freely exercising their religion were not being respected . The Wisconsin
Supreme Court found in favor of the Amish parents.

Decision:
The Supreme Court agreed by a vote of with the lower court that Wisconsin's law
violated the families' rights to free exercise of religion. The vote was six and a half
to one-half with Justices Powell and Rehnquist not participating.

Majority Opinion: {Chief Justice Burger)

The Amish have a legitimate reason for removing their children from school prior to
their attending high school. The qualities emphasized higher education (selfdistinction, competitiveness, scientific accomplishment, etc.) are contrary to Amish
values. Additionally, attendance in high school hinders the Amish community by
depriving them of the labor of their children and limiting their ability to instill
appropriate values in their adolescents. A state's interest in universal education
must be balanced against the legitimate claims of special groups of people. The
State cites two interests in compulsory education: to create a citizenry to
participate in our political system and to prepare self-supportive people. The Court
agrees with the Amish that an additional one or two years of education will not
significantly affect either of these interests.

The Court's decision prevented states from asserting an absolute right to institute
compulsive high school education. By preventing parents from removing their
children from school, the State in intruding into the family and preventing them
from instilling their faiths in their children.

Church of the Lukumi Babalu Aye v. City of

Hialeah
508 U.S. 520 (1993)

Facts of the Case:

The Church of the Lukumi Babalu Aye leased land in Hialeah, Florida and planned
to establish a church, school, and cultural center there. They would bring their
practice of Santeria, which included the ritual sacrifice of animals, into the area.
Animal sacrifice is practiced at birth, marriage, and death rites. It is also used for
curing the sick and other annual ceremonies. As a response to this, the city of
Hialeah passed several ordinances prohibiting animal sacrifice. The Church
claimed that this violated their First Amendment rights to freely exercise their
religion .

Decision:
The Court unanimously invalidated the city ordinances that outlawed animal
sacrifices.

Majority Opinion: (Justice Kennedy}

In order to avoid having to meet the compelling interest requirement, a law must
be both neutral and generally applicable. "Official action that targets religious
conduct for distinctive treatment cannot be shielded by mere compliance with the
requirement of facial neutrality." The suppression of Santeria was the central
purpose of the law as noted by the use of terms such as 'ritual' and sacrifice' in the
statute. Also, a resolution was passed that spoke harshly against "practices which
are inconsistent with public morals, peace of safety," and "reiterated" the city's
comm itment to prohibit "any and all [such] acts of any and all religious groups.'' If
the city's primary purpose was to protect against cruelty to animals, a less
restrictive ordinance could have been passed. The city claimed to have two
interests in passing the legislation: protecting the public health and preventing
cruelty to animals. However, the laws that were passed did not go far enough to
meet these interests . They limited the laws to cover only the types of practices that
would occur during Santeria.

Significance:
This decision reaffirmed the standard set forth in Smith to determine whether a law
violates the freedom of individuals' to exercise their religions. In order to not have
to meet the compelling interest standard a law must be generally applicable and

29

neutral.

FIRST AMENDMENT- ESTABLISHMENT CLAUSE

County of Allegheny v. ACLU Greater Pittsburgh
Chapter
492 U.S. 573 (1989)

Facts of the Case:

This case judged the constitutionality of two holiday displays in downtown
Pittsburgh. One was a creche outside the Allegheny County Courthouse and the
other a menorah outside the City-County Building. The Court of Appeals declared
both displays were in violation of the First Amendment because they endorsed
religion.

Decision:
In a deeply fragmented decision, the Court ruled that while the creche was
unconstitutional, the menorah display was not.

Plurality Opinion: (Justice Blackmun)

Unlike in Lynch v. Donnelly in which the Court allowed a city in Rhode Island to
display a creche as part of a holiday display, the Pittsburgh display was not used
in conjunction with seasonal decorations. Because of this independence along with
the prominent place the creche occupies (which signals government
endorsement). the display is judged to have a religious purpose. The fact that the
creche was set up by a private organization (the Holy Name Society-a Roman
Catholic group) does not reduce the apparent endorsement by the government of
the display.
Unlike the creche, the menorah does not have an exclusively religious message.
The menorah was placed next to "a Christmas tree and a sign saluting liberty"
which the Court considers significant. Instead of endorsing any religious group, the
display recognizes the holidays as "part of the same winter-holiday season".
Therefore, the display in its entirety does not endorse or disapprove of any
religion, and the menorah may remain.

Dissenting Opinion: {Justice Kennedy:)

While the menorah is constitutionally permissible, the Creche ought to be as well.
The display of the Creche does not violate the Establishment Clause because it
does not have the effect of advancing or inhibiting religion. Furthermore, the
statute again does not violate the Establishment Clause because the clause does
not mandate there be no contact between government and religion, are an
"government policies of accommodation, acknowledgement, and support for

3o

religion are an accepted part of our cultural heritage."

Although it professes to do otherwise, this decision appears to allow the existence

of competing religious symbols to convey a message of acceptance of religious
plurality. While a symbol might individually be unconstitutional, its inclusion with
other secular/seasonal decorations may offset the message sent. As a result,
communities who desire holiday decorations must create a display that does not
send the message of endorsing a particular religion to the exclusion of others.

Oral Arguments in the above case are available through

http://religiousfreedom.lib. virginia.edu/courtlalle v aclu.html Or use link on Edline

Everson v. Board of Education of Ewing Township

330

u.s. 1 (1947)

Facts of the Case;

A New Jersey school district had passed a plan allowing the reimbursement of
schools for the transportation of students to private schools. The district was acting
under a statute that allowed schools to regulate the transportation of students. A
state court had ruled the plan unconstitutional, but the New Jersey Court of Errors
and Appeals reversed the decision.

Decision:
The Court voted 5-4 in favor of upholding the New Jersey plan.

Majority Opinion:

Black)

Paying for the busing of parochial school students does not breach the
Establishment Clause. Even though the assistance might make parents more likely
to send their children to such schools. the authorization does not unduly assist the
schools. The policy is general because it applies to public and private school
students and does not single out those attending religious schools . The funding of
busing is similar to the public payment of policemen and firemen who protect
parochial school students.

'D issenting Opinion: (Justice Rutledge:)

The plan supports religious training and belief through the use of government
funds. The funds for the plan are taken from taxes levied on citizens of all faiths
and should not be used to further the religious education of children of other faiths,
thereby violating the Establishment Clause. If it is permissible to pay for the

31

transportation to private religious school on the grounds it promotes education,

then why not pay for the entire costs of the schooling on these same grounds?

Significance:
Using the Fourteenth Amendment, the Court applied the Establishment Clause to
the states. However, it was not violated so long as money was not given directly to
religious schools or gave them specific benefits.

Lemon v. Kurtzman,
Earley v. DiCenso
and

Robinson v. DiCenso
403 U.S. 602 (1971)

Facts of the Case:

These three cases from Pennsylvania and Rhode Island involved public
assistance to private schools, some of which were religious. Pennsylvania's law
included paying the salaries of teachers in parochial schools, assisting the
purchasing of textbooks, and other teaching supplies. In Rhode Island, the State
paid 15% of the salaries of private school teachers. A federal court upheld the
Pennsylvania law while a District Court ruled that the Rhode Island law fostered
'excessive entanglement'.

Decision:
The Court unanimously (8-0) determined that the assistance was unconstitutional.

Majority Opinion: (Justice Burger)

There are three criteria that should be used to assess legislation: "First, the statute
must have a secular legislative purpose; second, its principal or primary effect
must be one that neither advances or inhibits religion; finally, the statute must not
foster and excessive government Entanglement with religion." The two statutes in
question violate the third of these criteria. The teachers whose salaries are being
partially paid by the State are religious agents who work under the control of
religious officials. There is an inherent conflict in this situation of which the state
should remain clear. To ensure that teachers play a non-ideological role would

require the state to become entangled with the church. Allowing th1s relationship
could lead to political problems in areas in which a large number of students attend
religious schools.

Significance:
Instituted the Lemon test for analyzing statutes relating to church-state interaction.

Lee v. Weisman
505 U.S . 577 (1992)

Facts of the Case:

A Jewish parent in Providence, Rhode Island challenged the local school district's
policy of including a prayer in its graduation ceremonies. At the disputed
graduation, a Rabbi thanked God for "the legacy of America where diversity is
celebrated ...O God, we are grateful for the learning which we have celebrated on
this joyous commencement... we give thanks to you, Lord , for keeping us alive,
sustaining us and allowing us to reach this special, happy occasion." The Bush
administration agreed with the school board which argued that the prayer did not
demonstrate a religious endorsement. The administration called for the court to
overturn the three-prong test established in Lemon v. Kurtzman that was used to
determine which laws violated the establishment clause. Neither the district nor
appellate courts chose to do so.

IDecislon:
In a 5-4 decision, the Supreme Court ruled that the graduation prayer violated the
Establishment Clause.

Majority Opinion: {Justice Kennedy}

The government's involvement in the religious exercise at graduation is 'pervasive'.
The prayers violate the earlier rulings preventing school sponsored prayer. The
state places both public and peer pressure on students to take rise for and remain
silent during the prayer. Although a person might stand for the prayer merely as a
sign of respect for others, such an action could properly be construed as accepting
the message. The control held by teachers and principals over the students'
actions forces those graduating to submit to the standards of behavior.

Dissenting Opinion; (Justice Scalia:)

This decision goes against years of history. The Lemon Test (Lemon) should not
be used as the defining test of what is permissible under the Establishment Clause

because, "if applied with consistency it would invalidate longstanding traditions."

Non-sectarian prayer at public gatherings and celebrations is a tradition that ought
to be protected within the confines of the Establishment Clause.

Significance:

The Supreme Court rejected the opportunity to reverse the standard it established
in Lemon. This ruling extended the prohibition of school prayer to graduation
ceremonies. It failed to accept that a student would not be harmed by standing
during the prayer without sharing the message contained in the prayer.

Oral Argwnents in the above case are available through:

http://religiousfreedom.lib.virginia.edu/court/lee v weis.html or use link on Edline.

Edwards v. Aguillard
482 U.S. 578 (1987)

Facts of the Case;

Louisiana had a "Creationism Act" that prevented the teaching of evolution unless
it was accompanied by the teaching of biblical creationism. Neither was required to
be taught, but the former could not be taught without being grouped with the latter.
This was challenged by a group of parents for violating the Establishment Clause.

Decision:
In a 7-2 decision, the Court invalidated Louisiana's "Creationism Act" because it
violated the Establishment Clause.

Majority Opinion: (Justice Brennan)

The Lemon test must be used to gauge the constitutionality of the Creationism Act.
The Act does not have a secular purpose. It does not advance academic freedom
and restricts the abilities of teachers to teach what they deem appropriate.
Louisiana offers instructional packets to assist in the teaching of creationism but
not for the teaching of evolution. The Act does not require the teaching of
creationism. it only asserts such an interest when evolution is taught. 'The
preeminent purpose of the Louisiana Legislature was clearly to advance the
religious viewpoint that a supernatural being created humankind ... The Louisiana
Creationism Act advances a religious doctrine by requiring either the banishment
of the theory of evolution from public school classrooms or the presentation of a

religious viewpoint that rejects evolution in its entirety.''

Significance:
This decision found that requiring evolutionism to be taught with creation science
does not further a secular purpose. Therefore, it is easily dismissed for violating
the first prong of the Lemon test.

Oral Arguments in the above case are available through:

http://religiousfreedom.lib.virginia.edu/court/edwa v agui.htrnl or use link on Edline.

McCollum v. Board of Education, School District

71
333 u.s. 203 (1948)

Facts of the

In 1940, local Jewish, Roman Catholic, and some Protestant groups formed the
Champaign (IL} Council on Religious Education. The group, with cooperation of
the Champaign Board of Education, offered voluntary classes in religion to public
school students. The classes were held during the school day and those children
not participating were forced to go elsewhere in the school to pursue secular
studies. In order to participate, a student needed to have a permission slip signed
by his parents.

Decision:
By a 6-1 vote the Supreme Court disallowed the practice of allowing religious
education to take place in public school classrooms during the school day.

Majority Opinion: (Justice Black)

The Court must support the impenetrable wall between church and state. By using
tax-established and tax-supported public schools to teach religion to students, the
government aids these groups in the spreading of their faiths. Refusing to "aid any
or all religious faiths or sects in the dissemination of their doctrines and ideas does
not... manifest a governmental hostility to religion or religious teaching." It is not
relevant that students are not forced to participate in the classes or that parental
permission is required. The important point is that the religions receive a benefrt by
being offered the venue through which to spread their message.

35

Significance:
In this case the Court affirmed that refusing to assist religion should not be
construed as hostility to religion. Any act by the government to assist religion
broaches the wall that must separate Church and State.

THE FIRST AMENDMENT: FREEDOM OF SPEECH

" Congress shall make 110 law abridging tire freedom ofspeech, or oftl1e
press; or tl1e right ofthe people peac.-eably to assemble, and to petitio11 the
Govenzment for a redress of grieva11ces."
Why: America is a "marketplace of (even unpopular ideas)
Balance

999

E.g. How do we test?

FORUM: Where tlze speech tJJkes place

I. Public:
Level ofS"'1lltiny:

2. Seori-Public:
Level of Scrutiny:
3. Private:
Level of Scrutiny

Limitations of Free Speech:

1. Obscenity; not protected
What is obscene? A 3 part test(MiOer v. California 1973)
a. would the average applying contemporary community
standards find the material as a whole appeals to prurient

interests?

37

b. Does the work depict or describe, in a patently offensive way,

sexual conduct specifically outlawed by law>
c. Does the work, taken as a whole, lack serious literary,

artistic, political, or scientific value?

Gray areas: sexually violently works, adult bookstores, child pornography
Cyber-pornography

2. Defamation: verbal = slander

written - b'bel
A false expression about a person that damages his or her
reputation
Defenses to charges of defamation:
1.
2.

MORE LIMITATIONS TO FREE SPEECH:

3.Fighting Words:
Wby?

4. Clear and Present Danger (e.g. 1950's McCarthyism)

a charged by government
b. balancing test

5. Hostile Audience -Offensive Speech

a Incitement Test
(Gregory v. Chicago 1969)

6. Hate Speech (hard to prove because the Constitution promotes the

"Marketplace".
1. Hate Crimes; bias motivated violence

Case Study 1
Permits and demonstrations
A group of National Socialist Party of America members decided to hold a demonstration ln a city with a
large number of Jewish residents, many of whom survived the Holocaust. The party members wanted to
display the swastika, a symbol of Nazi beliefs that for many people represents the Holocaust itself. The
citizens of the city were not only deeply offended by the Nazis' beliefs but feared that violence would result if
the National Socialist Party members were allowed to parade through their streets in uniform and distribute
materials "inciting and promoting hatred against Jews .. .. The city government passed several ordinances
regulating public demonstrations. These ordinances required the organizers of any parade or assembly that
involved more than 50 persons to obtain insurance coverage. The ordinances also gave the city council the
authority to deny a pennit for a demonstration if that demonstration might result in disorder. The council also
banned demonstrations by members of groups wearing military-style unifonns, as well as all demonstrations
that "incite violence, hatred, abuse, or hostility toward a person or group of persons by reasons or reference
to religious, racial , ethnic, national, or religious affiliation: The National Socialist Party of America then sued,
declaring the ordinances unconstitutionally interfered with their rights to free speech.

Is this speech protected?

If not, what harm might occur as a result of the speech?
What value or right is conflicting With free speech in this case?

Case Study 2
Burning a selective service registration certificate
In 1966 four friends burned their draft cards on the steps of the South Boston Courthouse to protest the
Vietnam War. After the cards were burned, a crowd that had been watchfng attacked the four young men.
An FBI agent in the crowd took the men into the courthouse. where they were arrested and charged with
violating a law that made it illegal to destroy or mutilate a draft card. The protesters said that this law
unconstitutionally denied them freedom of speech.

Is this speech protected?

If not, what harm might occur as a result of the speech?
What value or right is conflicting with free speech in this case?

Case Study3
Obscene or indecent phone calls
The federal government passed a law making it illegal to offer commercial, interstate services that involved
"obscene" or "indecent" telephone communications. The law was aimed at "dial-a-porn'' services. These
services provide a taped, sexually explicit message that is activated when customers dial a phone number.
Customers are charged for the call. One company sued, claiming that the law was unconstitutional unoer the
First Amendment.

Is this speech protected?

If not. what hann might occur as a result of the speech?
What value or right is conflicting with free speech in this case?

Case Study4
Distribution of an onymous political flyers
On April 27, 1988, Margaret Mcintyre passed out flyers outside a school where a public meeting was being
held to discuss an increase in school taxes, Mcintyre's flyers urged people not to vote for the tax fncrease.
The flyer was signed ''Concerned Parents and Taxpayers" but did not give the name or address of the
indiVldual(s) issuing the literature.
A school official complained, and Mcintyre was charged with violating an Ohio state law against distributing
anonymous literature about election issues. The law required that the name and address of a person or
organization be printed on all campaign pamphlets, flyers, brochures, etc. The law was to protect candidates
and voters from anonymous libelous or false Information that might unfairly influence the results of an
election. However, it applied to all anonymous literature, even if was not libelous or obviously false.

Is this speech protected?

If not. what harm might occur as a result of the speech?
What value or right is conlllcting with free speech in this case?

PROBLEM 37.7

A state university adopts the following policy: "A student or faculty member
may be suspended or expelled for any behavior, verbal or physical, that stigmatizes an individual on the basis of race, ethnicity, religion, national origin ,
sex, sexual orientation, creed, ancestry, age, marital status, handicap, or
Vietnam veteran status.
a.

Decide whether the following actions violate the above policy. If they do,
should the actor or actors be punished?

1. After writing a limerick for an assignment, a student reads it aloud

in an English class. It makes fun of the reported homosexual acts of
a politician.
2. A White student writes an article on race relations for the school
newspaper. It points out that African Americans are more likely than
whites to become criminals in America, which is one reason why
whites do not mix more with African Americans.
3 . The athletic director schedules the varsity club' s awards dinner on a
major Jewish holiday. Several Jewish athletes are unable to attend.
4. An African-American student hears that a group of Chinese students
will not socialize with African Americans. She calls them "typical
Chinese racists."
5. Wearing white robes and hoods, a white supremacist student group
stages a silent march on campus.
6 . One student says to a group, "that guy kisses guys" and then
laughs.
What are the arguments for and against the above policy? Do you SUI>'
port or oppose it? Can it be rewritten for improvement? If so, how? Are
there ways for students to take a stand against hate speech even if
there is no code? Explain.
c. Should television and radio stations be regulated by laws, or should
they have their own rules similar to the above university policy? Should
other private businesses have similar rules? Give your reasons.
d. Think about how racial and ethnic slurs compare with fighting words. In
what ways are they the same? How do they differ?
b.

2. 40 states have Jaws against hate crimes

a. laws cannot be vague or overbroad

See:

R.A.V. v. City of St. Paul ( USSC 1992)

Wisconsin v. Mitchell (USSC 1993)
Virginia v. Black (USSC 2003)

How do these above cases compare? How do they contrast? Which do you agree with?
Explain how the opinion supports your position.

MANY MORE LIMITATIONS TO FREE SPEECH:

Schools: Does the 1st Amendment apply to public school teachers'!

Does the 1st Amendment apply to public school students?
Does the lst Amendment apply to private scbooJ students?
Tinker v. Des Moines Independent Community School District {USSC 1969)

T tnJ'-r r 'Des

fl'J09J

Synopsis: This month we spotlight the 1969 landmark case of Tinker v. Des Moines,
which affirmed the First Amendment rights of students in school. The Court held that a
school district violated students' fiee speech rights when it singled out a fonn of
symbolic speech -black armbands wom in protest of the Vietnam War- for prohibition,
without proving the armbands would cause substantial disruption in class.
Resources
http://wwv..,_firstam endmentcenter.org/faclibrary/case. aspx?id= 1860
http://www.oyez.org/oyez/resource/case/3 91 /audioresourccs
http://www.abanet.org/publiced/lawday/tinker/home.htrnl
Activity
The December morning air was chilly as students John and Mary Beth Tinker were
getting ready for school. As they got dressed, they tied black armbands around their
sleeves. It was 1965, and John and Mary Beth were opposed to American involvement
in the Vietnam War. They had decided to wear the armbands to school as a symbolic
protest. The school district, having learned of their plan to wear the armbands, had
adopted a new policy to suspend students who came to school wearing them. John and

41

Mary Beth knew about the policy but they kept their armbands on as they walked into
their classrooms in their Des Moines, Iowa public schools. It was not long before
school officials asked John and Mary Beth to remove their ann bands, but they both
refused and were suspended.
The school district maintained that it had banned armbands because of their potential to
distract students and disrupt class. However. other forms of potentially controversial
speech had been permitted in school, including campaign buttons.
The Court had to consider two questions: were the armbands a form of symbolic speech
protected by the First Amendment? And if so, did the school district have the power to
restrict that speech in the interest of maintaining order in the school? In a 7-2 decision,
the Court found that the annbands were basically "pure speech" and that the school ' s
action was unconstitutional.
a famous phrase, Justice Fortas wrote, " It can hardly be
argued that either students or teachers shed their constitutional rights to freedom of
speech or expression at the schoolhouse gate .... "

The Court found that the school had not demonstrated that the annbands caused "a
material and substantial interference with schoolwork or discipline" and, rather, had
acted merely to avoid the "discomfort and unpleasantness that always accompany an
unpopular viewpoint." The Court noted that the school district had not banned all
political symbols, but had instead "singled out" the annbands for prohibition. In other
words, the limiting of speech was not content-neutral- a test the Supreme Court uses
when deciding some First Amendment cases.
The Tinker case remains a landmark in upholding the rights of students in schools to
express their views in a peaceful and orderly way.

Questions
1. Why were John and Mary Beth Tinker suspended?
2. Why did the Supreme Court find their suspension unconstitutional?
3. The First Amendment says "Congress shall make no law . . .abridging the
freedom of speech." Do you think that armbands worn in protest are the same
as "speech"? Why or why not?
4. In his dissent, Justice Black wrote, "the [First Amendment] rights of free
speech and assembly do not mean that ' everyone with opinions or beliefs to
express may address a group at any public place and at any time. "' What did
he mean? Do you agree?

Hazelwood v. Kohlmeier (USSC 1988)

The journalism class at Hazelwood East High School wrote articles and put them together
for the school paper. They gave the newspaper to their teacher, Howard Emerson. Mr.

Emerson showed the newspaper to the principal. He asked the principal if it was okay to
make copies and hand them out to students at the school.
Principal Reynolds did not like what he read. First, there was an article about pregnant
students. It described the students, but it did not give their names. Principal Reynolds was
afraid that students would be able to figure out who the pregnant students were. He also
noticed that the article mentioned sex and birth control. He did not think that students in
ninth grade should be reading about sex and birth control.
There was another article that Principal Reynolds did not like. This one talked about
divorce. In it, one student said things about her father. For example, she said that her
father went out too much. She also said that her father didn't spend enough time with his
family. The father did not get a chance to tell his side of the story. Principal Reynolds
thought this was unfair.
Principal Reynolds thought the paper needed to be changed. But it was almost the end of
the school year. He was afraid that it would take the class a long time to change it. If it
took too long, the school year would be over and the other students would not get the
paper. So he told Mr. Emerson to remove the pages that had the articles about pregnancy
and divorce. He said to make copies of the rest of the paper.
The students were very angry. They had spent a lot of time writing the articles. They
could have fixed them if Principal Reynolds had given them a chance. lnstead, he deleted
two pages that also contained other articles. They telt that this was a violation of their
First Amendment rights. They went to the U.S. District Court. The court did not agree
with them. lt said that school oftlcials may limit students' speech in the school newspaper
if their decision has "a substantial and reasonable basis." In other words, if he has a good
reason, it is okay for a principal to limit students' speech.
The students appealed the decision. The Court of Appeals reversed the decision of the
U.S. District Court. This court said that the school paper was a "public fonlm," or place
where students could express their views. The judges said that the school could not
censor the paper except "to avoid .. . substantial interference with school work or
discipline ... or the rights of others". They did not think that the articles about pregnancy
would have interfered with schoolwork. They thought the articles should have been
printed.
The school appealed the decision of the Court of Appeals. The Supreme Court of the
United States thought that this was an important case. It dealt with the rights of students.
It agreed to hear arguments from both sides.
Key Excerpts from the Majority Opinion

The case was decided 5 to 3.

Justice White delivered the opinion of the Court.

We have nonetheless recognized that the First Amendment rights of students in the public
schools "are not automatically coextensive with the rights of adults in other settings" .. .
and must be "applied in light of the special characteristics of the school environment' .. .
A school need not tolerate student speech that is inconsistent with its "basic educational
mission." ... even though the government could not censor similar speech outside the
school.
We deal first with the question whether Spectrum may appropriately be characterized as a
forum for public expression. The public schools do not possess all of the attributes of
streets, parks, and other traditional public forums that "time out of mind, have been used
for purposes of assembly, communicating thoughts between citizens, and discussing
public questions.'' . . .

The question whether the First Amendment requires a school to tolerate particular student
speech-the question that we addressed in Tinker-is different from the question whether
the First Amendment requires a school affiffilatively to promote particular student
speech. The former question addresses educators' ability to silence a student's personal
expression that happens to occur on the school premises. The latter question concerns
educators' authority over school-sponsored publications, theatrical productions, and other
expressive activities that students, parents, and members ofthe public might reasonably
perceive to bear the imprimatur of the school. These activities may fairly be characterized
as part of the school curriculum, whether or not they occur in a traditional classroom
setting, so long as they are supervised by faculty members and designed to impart
particular knowledge or skills to student participants and audiences.
Educators are entit1ed to exercise greater control over this second form of student
expression to assure that participants learn whatever lessons the activity is designed to
teach, that readers or listeners are not exposed to material that may be inappropriate for
their level of maturity, and that the views of the individual speaker are not erroneously
attributed to the school....In addition, a school must be able to take into account the
emotional maturity of the intended audience in determining whether to disseminate
student speech on potentially sensitive topics, which might range from the existence of
Santa Claus in an elementary school setting to the particulars of teenage sexual activity in
a high school setting.

Accordingly, we conclude that the standard articulated in Tinker for detCIDlining when a
school may punish student expression need not also be the standard for determining when
a school may refuse to lend its name and resources to the dissemination of student
expression. Instead, we hold that educators do not offend the First Amendment by
exercising editorial control over the style and content of student speech in schoolsponsored expressive activities so long as their actions are reasonably related to
legitimate pedagogical concerns.

We also conclude that Principal Reynolds acted reasonably in requiring the deletion from
the May 13 issue of Spectrum of the pregnancy article, the divorce article, and the
remaining articles that were to appear on the same pages of the newspaper.
The judgment of the Court of Appeals for the Eighth Circuit is therefore
Reversed.

Questions to Consider:
1. According to the opinion, do students have the same rights as adults in the ''real
world"?
2. Is the Spectrum a "public forum"? Why is this an important distinction to make?
3. What distinction does the Court make between the cases of Tinker v. Des Moines
and Hazelwood v. Kuhlmeier?
4. Explain, in your own words, why the Court believes educators should be able to

exercise greater control over school-sponsored publications, theatrical

productions, and other expressive activities than over student expression that
happens to occur on the school premises.
5. What does the Court mean by "legitimate pedagogical concerns?"
6. ln your opinion, should a school be able to refuse to sponsor student speech that
"might reasonably be perceived to advocate drug or alcohol use, irresponsible sex,
or conduct otherwise inconsistent with 'the shared values of a civilized social
order,' . . . or to associate the school with any position other than neutrality on
matters of political controversy?" Should a school be able to refuse to allow
students to independently express such opinions? Why or why not?
7. React to this statern.ent: "A school must be able to set high standards for the
student speech that is disseminated under its auspices- standards that may be
higher than those demanded by some newspaper publishers or theatrical producers
in the 'real' world - and may refuse to disseminate student speech that does not
meet those standards." Should standards in schools be different from standards in
the "real world?" Why or why not?

JfS



LANDMARK SUPREME COURT CASES AND THE CONSTITUTION

lltHGM BETHEL Y. FRASER (1986)

TUESDAY,MAY30, 2007

0VER\-1'EW

Tllc Bill ofRicllts All rights reserved

As the school year comes to a close and students are giving student government speeches and
commencement addresses, we spotlight the landmark student expression case Bethel v. Fraser
(1986). In this case, the Court considered whether the First Amendment protected a studentgovernment nomination speech filled with sexual innuendo.

bsOl:RCES

http://citizenbee.org/user/StudentGuide.aspx?id=720
http://W'vvw.law.urnkc.edu/facultv/projects/ftrialslfirstamendmentlbethel.html
985/1985 84 1667/

ACTtvm
High school srudent Matthew Fraser approached the podium at the front of his public
school's auditorium. He gazed at the crowd of 600 of his schoolmates while readying a printout
of his speech. Matthew was a little nervous. He felt nervous because he'd shown the speech to
two teachers at his school, and they both told him be probably should not deliver it. They told
him the speech was inappropriate. One of his teachers even warned him he might get into severe
trouble for reading it. He decided to read it anyway.
Matthew's speech was filled with sexual innuendo. When be delivered the speech, many
students called out, gestured, and la'Ughed, while others looked confused and embarrassed. After
the speech, Matthew was told he had violated the schools conduct code, which said: "Conduct
which materially and substantially interferes with the educational process is prohibited, including
the use of obscene, profane Language or gesrures." He was suspended for two days, and was told
he would not be allowed to speak at the school's graduate ceremony.
Matthew believed that he bad a First Amendment right to give his speech, and sued the
school. The First Amendment states in part. "Congress shall make no law .... abridging the
freedom of speech ... " Matthew claimed that his public school, as an instrument of the state, bad
violated his right to free speech. The school argued that Matthew's speech had clearly violated
the school conduct code; and that the First Amendment did not protect Matthew's words in
public school.
The case eventually went to the Supreme Court. The Supreme Court ruled that the school
had not violated Matthew's First Amendment rights, and that schools do not have to tolerate
"lewd and obscene speech." The Court held, "The process of educating our youth for citizenship
i' in public schools is not confined to books, the curriculum, and the civics class; schools must
' - teach by example the shared values of a civilized social order ... The schools, as instruments of
the state, may determine that the essential lessons of civil, mature conduct cannot be conveyed in
a school that tolerates lewd, indecent, or offensive speech and conduct such as that indulged in
by this confused boy ."

Qur:snoNS
1.
2.
3.
4.

Why was Matthew Fraser suspended?

Why did Matthew believe his suspension was unconstitutional?
How did the Supreme Court rule?
Do you agree with the Court's ruling? Why or why not?


m1:ra11

LANDMARK SUPREME COURT CASES AND THE CONSTITUTION

MORSE

v. FREDERICK (2007)

MONOAV,SEPTEMBER24,2007

:": Tlh.

eCR t!:hr" lu-;nntk, All nghts reserved

The decision in one of the most important student speech cases to reach the Court in decades
came at the end of last tenn. The case, Morse v. Frederick (2007), concerned the rights of a
public school student to unfurl a banner reading "Bong hits 4 Jesus" at a school-sponsored event
held off school grounds. We begin this school year with this landmark case on the rights of
public school students.

OVERVIE\\'

B1ll

RESOL'RCES

http:J/www.Jaw.comell.edu!supctlhtml!06-278.ZS.hmll
btm://citizcnbcc.org/user/StudentGuidc.aspx?id= 787
http :l/v.ww.oyez.org/cases/2000-2009/2006/2006 06 278/

ACTJ\ITY

Joseph Frederick knew the Olympic Torch relay runner was close and his anticipation
grew stronger. Officials at his Juneau, Alaska school had decided that students should be able to
see the Olympic relay pass on its way to the games in Sa1t Lake City, so a mini-field trip had
been organized. Students were taken outside, across the street from the schooL They were
surrounded by television cameras and reporters, all hoping to the capture the exciting event on
film. Few people even noticed Frederick was carrying a banner.
As the Olympic relay approached and cameras rolled, Frederick and some fellow students
unfurled the 14-foot banner. It read, "Bong Hits 4 Jesus." (This was a slang reference to smoking
marijuana.) The banner did not create a disturbance, but Principal Deborah Morse told the
students to take it down. When Frederick refused, Morse took the banner away and later
suspended Frederick for teo days. She cited the school's policy against materials promoting
illegal drugs.
Frederick denjed that the banner promoted drug use. He explained, "the words were just
nonsense meant to attract television cameras." He believed the First Amendment protected his
right to display this banner at a public school event, and brought suit against Principal Morse.
The Circuit Court agreed with Frederick and ruled that because be bad been punished for the
content of his speech (rather than any disturbance it caused), the school 's actions were
unconstitutionaL The case eventually went to the Supreme Court.
The Court decided against Frederick and ruled 5-4 that public school officials can censor
student speech that could be reasonably understood to promote illegal drugs. "The concern here
is not that Frederick's speech was offensive, but that it was reasonably viewed as promoting
illegal drug use." The Court explained that the free speech rights of students bad to be considered
in light of the "special characteristics" of the school environment, and that it was an important
responsibility of schools to deter drug use among young people.
QUESTIONS

Why was Joseph Frederick suspended?

How did the school justify his punishment?
How did the Supreme Court rule?
In his dissent, Justice Stevens argued that the message was "nonsense" and did not
promote drug use. ''Most students ... do not shed their brains at the schoolhouse gate ...
The notion that the message on this banner would actually persuade [a student] to change
his or her behavior is most implausible." Do you believe the banner could be reasonably
understood to promote drug use?
5. Do you believe the First Amendment protected Frederick's actions? Why or why not?

I.
2.
3.
4.

200 North Glebe Road, Suite 1050 Arlington, Virginia 22203 Phone: 703.894.1776 Fax: 703.894.1791

Student Reading 2:

The Supreme court's majority and dassenttng decls ons

on June 25 2007 the supreme Court ruled 6-3 to overturn the appeals court It rejected
Frederick Morses'ctaim of First Amendment free speech rights and supported Pnnctpal Deborah
Morse.

John Roberts in writing for the majority, clte<l the Tinker case: "Our [the court's]

that do not 'shed their constitutional rights to freedom of

schoolhouse gate."' But, he added, "At the same time, we have held that the constituttona ng s

of students in public schools are not automatically coextensive with the rights of adults in other
settings" and that the rights of students must be "applied in the light of the spedal characteristics
of the school environment. Consistent with these principles, we hold that schools may take steps
to safeguard those entrusted to their care from speech that can reasonably be regarded as
encouraging illegal drug use."
The principal's action was reasonable, the chief justice wrote. While the banner might be
"gibberish.'' the principal "had to decide to act--or not act-on the spot." Her decision was that the
banner promoted illegal drug use and that "failing to act 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 does not require schools to tolerate at school events
student expression that contrtbutes to those dangers."
Justice Clarence Thomas supported the decision, but went further. In his view, Frederick had no
First Amendment rights. "In the light of the history of American public education, it cannot
seriously be suggested that the First Amendment 'freedom of speech'" includes "a student's right
to speak in public schools."
Justices Anthony Kennedy and Samuel Alito Jr. were also part of the Court majority, but said the
decision should be understood as limited to speech advocating drug use, and that the court was
not endorsing the Bush administration argument that school officials can censor speech that
Interferes with a school's "educational mission ."
Justice John Paul Stevens. in a dissenting opinion supported by Justices David Souter and Ruth
Bader Ginsburg, agreed with the majority that t he principal not be held liable for pulling
down Frederick's banner" because she had a legitimate concern about the portrayal of such
student conduct on national TV. But, he added, "In my judgment, the First Amendment protects
student speech if the message itself neither violated a pennissible rule nor expressly advocates
conduct that is illegal and hannful to students. This banner does neither and the Court does
serious violence to the First Amendment in upholding ... a school's decision to punish Frederick for
expressing a view with which it disagreed."
Justice Stevens said the majority opinion distorted the First Amendment by "inventing out of
whole cloth a special First Amendment rule permitting the censorship of any student speech that
mentions drugs in a way that someone might consider a "latent pro-drug message." There is, he
wrote, "absolutely no evidence" that reference to drug paraphernalia infringed on anyone's rights
or "interfered with any of the school's educational programs."

For discussion

THE BO S TON

GLOBE

WEDNESDAY, S E PT E MBER 2 7 , 2006

The Nation
- - ------ - - -

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-t:

ANTIWAR STATEMENTProtesters lay on the floor

of the Hart Senate Office
Building in Washington
yesterday, waiting to be
arrested, as Capitol Hill
police surrounded them.
The Declaration of Peace
campaign bas staged
demonstrations across
the country urging an
end to the war in Iraq.

Court case tests

RY ORNE POL!ClNSKI

What do you think "Bong Hits 4

Jesus" means?
The U.S. Supreme Cow't heard
March 19 from lawyers for former
student Joseph Frederick. who
says lt means nothing, and from
the ,Juneau -Douglas, Alaska,
school system that suspended
Frederick for displaying it on a
brumet' a11d who claims It's drugrelated and disruptive.
Whatever the meaning or lhe
"slogan," or lack of one, the case is
not al>out bongs or ,Jesus - It's
about the extent to which public
scho>l ofGclals can or sbottld control the speech of studentS who atlend their schools.
Former student Frederick admits be just wa11ted to get ou TV
-and lo irritate his principal,
Deborah Morse, when he dis
played the banner in 2002 from a
public sidewalk across from school
property. He's aJlunlikely hero for
student-expression advocates: "I
never professed to be a saint,"
Fredetick told the Associated
Press.
ABC News reported that the
self-professed non-saint, now
teaching In China, had earlier been
disciplined for falling to obey a
teacher's conunand to leave a com
mon area and for remaining seat
ed during the Pledge of AlleglaJlce.
Morse, for her part, is alleged t{)
have gone across the street after
spotting the sign, up onto a pubLic
sidewalk where Frederick was
standing, and to have pulled the

()

extent of students' freedom of

expression
the American Civil Liberti es
Union and the Lambda Legal Defen!le and Education Fund, found
common ground in support of
open student expression. The National School Boards Association
urged tbe Court to gra11t review In
the case "to llfford critical guid
ance t.o school administrators re
gardirtg free speech rights."
To be sure, in decisions that followed Tinker by about 20 years,
the Ciourl already has permitted
school ofnclals to regulate student
speech that is vulgar, lewd or
"plainly offensive," and given
them grealer powers to censor
school-sponsored student newspa-

pers.

Associated Prt>ss

Students demonstrate In favor of free speech In public schools outside

the U.S. Supreme Court March 19 where the justices were hearlno testimony In the " Bong Hits 4 Jesus" case.
banner from Frederick's hands.
Frederick claims In court that
Morse later doubled his initial fiveday suspension when he cited
free-speech principles and
Thomas Jefferson, but Morse dis
pules that accounl
Morse v. Frederick Is worth
tracking because of its potential to
strike at the heart of a 1969 land
mark case In which the U.S.
Supreme Court declared students
do not "shed their constitutional
rights to freedom of speech or expression at the schoolhouse gate."
ln Tinker v. Des Moines Independent Commw1ity School District,
the Court said student speech is

protected unless school officials

can reasonably forecast that It will
disrupt the educational ptocess.
The students in the Tinker case
had worn black armbands to
school to protest deaths In the
VIetnam War.
The "bong" case has attracted
lnterest ru1d legal briefs from more
than a dozen natlooal groups on
both sides, including groups not aJ.
ways in agreement.
A number of conservative and
liberal organizations, lncludlug
the Amerlca11 Center for Law and
Justice and the Alliance Defense
Fund, two of the leading Christian
legal-advocacy groups, Rlong willl

Student -speech advocates warn

that the ruling in Morse, if the
school's position prevails, could
embolden superintendents and
p1lnclpals to broaden even more
the scope of what they see as disruptive, a11d even t.o reach into cyberspace to discipline students for
Web posllngs that administrators
view as opposed to school policies
or disruptive.
For their part, groups lining up
behind the school system say that
to permit Frederick's prank Is to
weaken the ability of educators to
maintain order, educate a11d protect students in a post-Columbineshooting era.
And because Frederick Is seeking monetary damages, saying
Morse sbould have known she was
v1olatlng his basic constitutional
rights, the rugument is made that

every school authbrity will be fearful of ta.k.ing 11ctlon a dis.

mptive sb1dent because of potential personal llablllty.
At the very least, the case could
offer a 21st-century update to the
rules by which students and administrators wlll operate - the
first such time in 20 years t.he
Court has revisited a trio of
cases that bega11 with Tinker and
ended in the i!lsos. And it certainly
could have a11lmpact on a host of
other controversies involving stu
dimt speech that have bubbled up
in recent. months, from T-shlrt
messages crlti!!al of President
Bush to Web postlngs that attack
teachers to student newspaper editorlaJs that discuss gay lights.
And, as Justice Samuel Alllo
during oral arguments, the
upcoming decision til Morse also
may affect yet another contentious
issue tor students and adm1n1strators- the extent to which stu. dents may expiess tlieir religious
views In public schools.
That's a Jot of serious for
a case with a siUy nicltname.

FREEDOM OF TilE PRESS:

Limitations on Freedom of the Press

L Prior Restraints (Gag Order)

2. Denying Press Access to Public Information

3. Requirement of Press to Disclose Sources of Information

(NY Times v. Forbes 1978)

TilE F.IRST AMENDMENT lN SPECIAL PLACES:

CRIMINAL PROCEDURE

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CRIMINAL PROCEDURE: an overview

Criminal procedure is composed of the rules governing the series of proceedings through
which the substantive criminal law is enforced. In the United States, most crimes are
defined by local and state government, though the federal government has adopted its
own criminal code, at Title 18, to deal with activities extending beyond state bmmdaries
or having special impact on federal operations.
The procedure for Climinal trials in federal courts is outlined in Title 18. States also have
statutes that set out the framework for criminal procedure, subject to important
constitutional limits. For example, the U.S. Constitution Bill of
Rights (http://www.law. cornelL edu./constitutionlconstitution. billofrights. htm!) provides
basic protections including the right to an attorney, the right 1o not testify, the right to
confront witnesses, and the right to a jury trial, among others. State constitutions may
increase, but not take away from the federal protections.
The American criminal system is an adversarial and accusatorial model. Criminal
procedure must balance the defendant's rights and the state's interests in a speedy and
efficient trial with the desire for justice. Therefore, the rules of criminal procedure are
designed to ensure that a defendant's 1ights are protected.
The rules of criminal procedure are different from those of civil procedure, because the
two areas (criminal and civil) have different objectives and results. In criminal cases, the
state brings the suit and must show guilt beyond a reasonable doubt, while in civil cases
the plaintiff brings the suit and must only show the defendant is liable by a
preponderance ofthe evidence.
http://www .law .comell.edu/wex/index.php/Criminal procedure

FOUNDATIONS OF CRIMINAL PROCEDURE- The rules of criminal procedure

are in place to insure the accused receives every opportunity to benefit from the laws and
processes of the U.S. Constitutjon. Recalling that fundamental rights are at stake in a
criminal trial; life, liberty and property, a defendant is provided ample opportunity to due
process and equal protection under the law. Therefore, the process by which law
enforcement officers accumulate evidence against the defendant in order to prove guilt
beyond a reasonable doubt, must follow set procedures.
There are certain instances when evidence is excluded from presentation in court:

Exclusionary Rule: Effects law enforcement conduct and admissibility of evidence

Requires that evidence offered by prosecution in a criminal trial be
rejected because of impropriety in the process of gathering it. Varies from
state to state.

Mapp ''Ohio (US SC 1961): Mapp is convicted of possession oflewd

and lascivious books and pictures which were unlawfully seized by police.
Facts: Police were notified ofa person wanted in connection with a
bombing incident. When police arrived at Mapp 's residence, he refused
them entrance without a search warrant. Three hours later, police returned,
forcibly entered, and when Mapp' s attorney arrived, they would not allow
him access to his client or the residence. Mapp demanded a and
paper was shown to him. In the course of the search, obscene materials
were found and seized.
Trial court found no offensive or brutal force on the part of police and
convicted Mapp.
U.S. Supreme Court reversed the decision:
Rule:"All evidence obtained by search and seizures in violation of the
Constitution (41h Amendment) is inadmissible in state court.
Impact ofMapp - The 4 th Amendment is the minimum standard of protection;
state law can be more strict, but not less. The 141h Amendment mandates that all
states must adhere to the Exclusionary Rule.

Exception: Wordlaw Case (2000): If an officer is in a high crime area and a

suspect runs from authority, he can be seized and searched without a warrant.
Analysis
The Exclusionary Rule prevents war between the Constitution and
common sense in that it promotes an avoidance of conflict between state and
federal courts. The rule reminds those sworn to uphold society' s laws that the
government is destroyed if it fails to adhere to its own laws. ln other words, ifa

crimillal goes free, it is the law that sets him free.

The Exclusionary Rule is not a personal constitutional right, rather a
detetTent to police procedure in violation of the 4th Amendment.

Discussion: Does the application o f the Exclusionary Rule deflect truth finding
and free the guilty?
Discussion: May a defendant found guilty in state court appeal to federal court?
(Always ask: Were any constitutional rights violated? If yes, federal court
may intervene).

so-

 ;

.rJ 00 .. -.

,.o 0o o"o" .
lo oo V

..., oo

1:7

RULE: EVIDENCE. OBTAJNED BY ILLEGAL ACT IS TAINTED

EVIDENCE--- FRUIT OF THE POISONOUS TREE
Exception to the rule: If evidence bas an ''independent source", that is,
obtained after the violation of one's rights but not as a consequence of that
violation, it is admissible. Any evidence obtained before the violation is
admissible as well.
What are the positive and negative results of the above exception?

Remember: Fruits of the poisonous tree affect EVIDENCE, and is not a

basis for dismissing prosecution.

Otber Exceptions to ExcJusionary RuJe:

Miranda Rights
Atmosphere: congenial or hostile?
Circumstances and Free Will
Any flagrant misconduct
Voluntary Statements
"'Independent Source''
Inevitable Discovery: Evidence would have been found
anyway

Good Faith

(United States v. Leon USC 1984)

SEARCH WARRANT: Law enforcement must prove they have probable cause to
search a person's property or other areas where there is a reasonable expectation of
privacy. The warrant must also specificaJly describe the item(s) for which the search is
being requested. Finally, all search warrants must be signed by a judge or magistrate ptior
to its implementation.

What are some positive and negative co11sequences of the strict criteria for
search warrants?

The Fourth Amendment is not an absolute right to privacy,

and it does not prohibit all searches-only those which are unreasonable. In deciding if a search is reasonable, the courts look to the
facts and circumstances of each case . As a general rule , courts have
held that searches and seizures are us.ually unreasonable unless
authorized by a valid warrant.

Searches

a

VVarrant

A search warrant is a court order obtained from a judge who is

convinced that there is a real need to search a person or place.
Before a judge issues a warrant, someone-usually a police
officer-must appear in court and testify under oath concerning
the facts and information that provide the probable cause or good
reason to believe that a search is justified. This sworn statement of
facts and circumstances is known as an affidavit. If a judge decides
to issue a search warrant , the warrant must specifically describe the
person or place to be searched and the particular things to be seized.
Once a search warrant is issued, the search must be executed
within a limited period of time, such as ten days. Also, in many
states a search warrant must be executed only in the daytime,
unless the warrant expressly states otherwise . Finally, a search
warrant does not necessarily authorize a general search of everything in the specified place. For example, if the police have a
warrant to search a house for stolen televisions or other large
items, it would be unreasonable for them to look in desk drawers.
envelopes, or other small places where a television could not possibly be hidden.
PROBLEM 25

a. Examine Figure 5, an affidavit for a search warrant. Who is

requesting the warrant? What are the searchers looking for:> What
persons or places are sought to be searched? What facts and circumstances are given to justify the search?
b. Examine Figure 6, a search warrant. Who authorized the
search? When may the search. be conducted? Considering the
affidavit, do you think the judge had sufficient grounds to authorize the warrant? Is there anything missing from the warrant?

c. ;As a general rule, why do you think the Fourth Amendment

requires police to obtain a warrant before conducting a search?
Why do you think there is a general requirement that searches be
conducted during daylight hours?
d. Under what conditions do you think police should be allowed to
search without a warrant?

Sl

FIGURE 5 Affidavit for Search Warrant

Form A 0

1()6 I Rc A"r

Affidavit for
Search Warra.n t

\9'71 f

11lnttrll Et.stctrt illuurt

FOR THE
Eastern District of Missouri
Docket
UNITED

Cs.se

STATES OF AMERICA

vs.
John Doe

AFFIDAVIT FOR

SEARCH WARRANT

BEFORE Michael J . Thiel, Federal Courthouse, St. Louis , Missouri

Nwnc ol Judft' ot fcdnaJ Ma1mr-att

1\dtbe:lo.) of Jud1c or Ma&llltalt

The undersigned being duly sworn deposes and says:

.
(on the person of) Occupants, and
That he has reason to believe that (on the premises known as)935 Bay Street, St. Louis,
Missouri, described as a two story, residential dwelling, white in
color and of wood frame construction ...
in the

Eastern

District of Missour

there is now being concealed certain property, namely

counterfeit bank notes, money orders, and securit1es, and
plates, stones, and other paraphernalia used in counterfeiting
and forgery,
which are
here ,,., :alletttd $JOunru tor
and
in violation of 18 U.S. Code '471-474

And that the facts tendinll' to establish the grounds for issuance of a Search Warrant
are as follows:' (1) Pursuant to my employment with the Federal Bureau of Investigation, I
received information from a reliable informant that a group of persons were conducting
an illegal counterfeiting operation out of a bouse at 935 Bay Street, St. Louis , Missouri.
(2) Acting on this information agents of the FBI placed the house at 935 Bay Street under
around the clock surveillance. During the course of this surveilance officers observed
a number of facts tending to establsh the existence of an illegal counterfeiting operation.
These include: observation of torn & defective counterfeit notes discarded in the trash
in the alley behind the house at 935 Bay Street, and pick-up & delivery of parcels at
irregular hours of the night by persons
the FBI as having r ecords for distribution
of counterfeit money.

------

15-:

__

.. -

u
Sworn to before me, and subscribed in my presence,

3 .ed2.. , 19 17?
0//lcild

_____
'(/

Jwd1,.,

()f

,.,d.rJJI

/IIIJIUINU

FIGURE 6

Search Warranl
Search Warrant

f'orm A. 0 . 93 ( R Nov . 1972)

3auitri) tatrs 1llistrirt ffimtrt

FOR THE

Eastern District of Missouri

Docket No.

UNITED STATES OF AMERICA

CaseNo.

vs.

John Doe

11246

SEARCH WARRANT

To Any sheriff, constable, marshall, police officer , or investigative

officer of the United States of America.

Affidavit (s) having been made before me by

Special Agent, Barry 1. Cunningham

.
{ on the person of
}
that he has reason to beheve that
th
.
k
on
e premtses nown as

on the occupants of, and

on the premises known as 935 Bay Street , St . Louis, Missouri
described as a two story, residential dwelling, white in
color and of wood frame construction .....
in the

Eastern

District of Missouri

there is now being concealed certain property, namely

Counterfeit bank notes, money orders, and securities, and

Plates, stones, and other paraphernalia used in counterfeiting and
forgery
and as I am satisfied that there is p robable cause to believe that the property so described is being
concealed on the person or premises above described and that the foregoing grounds for application for
issuance of the search warrant exist.

You are he11eby commanded to search within a period of ___ _l_Q.__ __ __ (not to exceed 10
days) the person or- place named for the p r operty specified, serving this warrant and making the
}

search { at anytime in the day or night 1.

and tf the property be found there to setze 1t,
leaving a copy of this warrant and a rece1pt for the property taken, and prepare a written inventory of
the property seized and promptly return this warrant and b1ing the property before me as required
by law.

Dated this 3rd

day of December

1 The Fe-de-ral of Crim\nal Prooedun provide : "The warr.n..t sh\1 be in
the daytimt, lnuinr- autbodly, by appr-o l'rtl('
-provis ion an tbt wn-ant, and. -for t-euonable cautf' shown, authon-...ee itt aL time.r. other than davdme. " ('RuSe U ( C,)

Americans have always valued their privacy. They expect to be left alone, to be free from
unwarranted snooping or spying, and to be secure in their own homes. This expectation of
privacy is important and is protected by the U.S. Constitution. The Fourth Amendment sets out
the right to be free from "unreasonable searches and seizures'' and establishes conditions under
which search warrants may be used.
Balanced against the individual's right to privacy is the government's need to gather information.
In the case of the police, this is the need to collect evidence against criminals and to protect
society against crime.
The Fourth Amendment does not give citizens an absolute right to privacy, and it does not
prohibit all searches-Qnly those that are unreasonable. In deciding if a search is reasonable, the
courts look to the facts and circumstances of each case. As a general rule, courts have fol.Uld
searches and seizures reasonable when authorized by a valid warrant. In addition, courts have
recognized that certain searches conducted without a warrant can also be reasonable.

0%

50%

95%

100%

'

No
: Hunch : Suspicion . Reasonable 1 Probable Preponderance . Beyond
Certainty
1
Information 1
.
. Cause
of Evidence
.1Reasonable :
Grounds

i
Doubt
i
1

No Information means the officer doesn't know anything about the location of evidence
linked to a crime.
Hunch means the officer has a gut feeling that something is not right, but the officer cannot
point to any specific facts; it is something like intuition.
Susojcion means the officer knows a minor fact or knows some larger fact from an unknown
or unreliable source that suggests evidence may be located somewhere. For instance, an
officer stops a person on the street to ask a question and the person quickly puts a hand in a
pocket. Ot, the officer may find a piece of paper on the street, which says that a particular
person is selling drugs.
Reasonable Grounds Calso called Reasonable Belief and Reasonable Suspicion) means
the officer knows several minor facts or a larger fact, or a large fact from a source of unknown
reliability that points to a particular person engaging in some criminal activity. For example, a
teacher standing outside a girls' lavatory smells cigarette smoke coming from the lavatory .
The only two girls in the lavatory then leave together. The teacher has reasonable grounds,
but not probable cause, to believe the girls have cigarettes in their purses (a violation of a
school rule) .
Probable Cause means an officer has enough evidence to lead a reasonable person to believe
that the items searched for are connected with criminal activity and will be found in the place
to be searched. For example, an increase of 200 to 300 percent in power consumption within
a building is not enough alone to establish probable cause to believe that a drug-growing
operation is under way inside. However, such an increase, with other suspicious facts
including an anonymous phone call claiming that people at a certain place are growing drugs,
is enough for probable cause and a search warrant.
Preponderance of the Evidence is the amount of evidence needed to be successful when
suing in a civil case. It means that evidence must be "more likely than not,'' or more than 50
percent.
Bevond a Reasonable Doubt is the highest amount of proof; It is required to convict a
person of a criminal charge.
Certainty means that there is not even an unreasonable doubt as to its truth.

tpo

Cases to consider: Schmerber v. California (USC 1966)

United Stares v. Beale (736 Fed 2"d 1289)
Massachusetts v. Sneider
New Jersey v. TLO

EXPECTATION OF PRIVACY: Where can you expect your privacy to be

protected?

In your bedroom in your parents' home?

In your garage?

On your cell phone?

In your locker at school?

In your backyard?

In your car?

On your personal email account?

Cases to Consider:

State facts, issue(s), findings, and rules oflaw that

each case defined.

Oliver v. United States ( USC 1984)
Commonwealth ofMass. v. Blood
Florida v. Riley (USC i 989)
California v. Ciraole (USC 1986)
Commonwealth v. Panetti (Mass)
Horton v. California (USC 1990)
United States v. Chadwick
Katz Doctrine

Criminal Procedure - Vocabulary

Attenuation:
Katz Doctrine:
Expectation ofPtivacy:
Cartilage:
P lain View Doctrine:
Standing:
Profiling:
Miranda:

Valid Warrant:
Affidavit:
Probable Cause:
Certiorari:

Generally, a warrant to search a place cannot normally authorize a search of each

individual in that place.
"No Knock1' entries are permitted when: 1.) an announcement would endanger
officers, or 2.) annotUlcing would allow time for destruction of evidence to be
seized. (Rational for No Knock entries must be proven in the warrant' s affidavit).

. - """
r.
!;

Notes:

Read the Landmark Case: Terry v. Ohio (USC 1968): The scope of a search
must be tied to and justified by circumstances which made the arrest possible.

Notes:

Three officers with an arrest warrant wait for Chimel to return home. The
warrant specifies his probable participation in a robbery of rare coins.
They provide Chimel with the arrest warrant, and as they do they " look
around" even though there was no search warrant. They take coins and
tokens found in his living room. In court, Chimel objected to the use of the
coins and tokens as evidence, stating they were unconstitutionally seized.
He was convicted, and this conviction was upheld at appeal . (Chimel v.
California USC 1969).
Holding: A warrantless search incident to a lawful arrest may extend to the
area under possession of the person arrested.

Terry v. Ohio 392 U.S. 1 (1968) Stop and Frisk

Author: YJ>__by
STATEMENT OF THE CASE: The D contended that the weapon seized from his person and
introduced into evidence was obtained through an illegal search} under.the Fourth Amendment, and that
the trial court improperly denied his motion to suppress.

STATEMENT OF THE FACTS: An officer observed two men standing on a street comer. One would
walk up to a store window, look inside, and to confer with his companion. This process was
repeated about a dozen times. The suspects talked with a third man, then followed him up the street.
Thinking the suspects were "casing" the store, the officer confronted the three men and asked their
names. The men mumbled a response, at which time the officer spun one of the men, Terry (D), around
and patted his breast. He found and removed a pistoL 0 was charged with carrying a concealed weapon.
D moved to suppress this weapon from evidence. The trial judge denied his motion. The Ohio court of
appeals affinned, and the state supreme court dismissed D's appeal.

LEGAL ISSUE: Is it always unreasonable for a policeman to seize a person and subject him to a
limited search for weapons when there is no probable cause for arrest?

HOLDING: An officer is justified in conducting a carefully limited search of persons whom he

reasonably suspects to be dangerous in order to discover any weapons which might be used to assault
him or other nearby, even in the absence of probable cause for arrest and any weapons seized may be
introduced in evidence.

REASONING: (Warren, C.J.) No. An officer is justified in conducting a carefully limited search of
persons whom he reasonably suspects to be dangerous in order to discover any weapons which might be
used to assault him or other nearby, even in the absence of probable cause for arrest. The exclusionary
rule has limitations as a tool of judicial control. In some contexts, the rule will not be effective as a
deterrent, and will potentially exact a high toll in hwnan injury. The govermnent's interest in preventing
harm must be balanced against the invasion into a person's privacy. The policeman should use an
objective test, and be able to point to specific and articulable facts which reasonably justifY the intrusion.
Standard would the facts available to the officer at the moment of the seizure or the search Warrant a
man of reasonable caution in the beliefthat the action taken was appropriate? Anything less would invite
intrusions upon constitutionally protected rights! . The Court went on to say that, effective crime
prevention and detection is a goverrunental interest in appropriate circumstances for purposes of
investigating possible criminal behavior even though there is no probable cause to make an arrest. It
would be unreasonable to reqltire that the policeman take urmecessary risks. He has a need to protect
himself and others in situations where he lacks probable cause for arrest. In this case, nothing in the
conduct of D and his friends dispelled the officer's reasonable fear that they were armed. Affirmed, for
P.

CONCURRENCE: (Harlan, J.) An officer must have constitutional grounds on which to insist on an
encounter, to make a forcible stop. The right to frisk must be immediate and automatic if the reason for
the stop is an articulable suspicion of a crime of violence.
CONCURRENCE: (White, J.) A policeman can address questions to anyone on the streets, but citizens
are not obliged to answer, and answers may not be compelled. A refusal to answer is no basis for an
arrest, but it may be a basis for continued observation.

DISSENT: (Douglas, J.) Infringement of one's personal liberty is only reasonable if probable cause is
present. The majority gives a policeman more authority to make a seizure and conduct a search than a
judge has.

CRITICAL SUMMARY: This case represents a delineation between a reasonable belief and a
reasonable suspicion. Probable cause= reasonable belief. Stop and Frisk= reasonable suspicion backed
by articulable facts.

Rawlings v. Kentury

United States v. Robinson

Massachusetts Statute 276.1

Alabama v. White (USC 1990) - anonymous tips

Commonwealth v. WayneLyons 409 Mass.16 1990

WARRANTLESS SEARCHES:
Stop and Frisk Only need reasonable suspicion as opposed to probable
cause.

Consider: the degree of the intrusion+ duration of time

FIRST
What about check point stops?

Administrative Searches -reasonable suspicion only. Why?

Examples of Administrative Searches:

POtNT

Emergency Doctrine- exigent circumstances

"On the facts of the particular case, delay to apply for a warrant would
result in sufficient risk ofloss of the evidence."

See: Minnesota v. Olson

0. '4'

- -

\:

_/

1.) Hot Pursuit:

2.) Consent: If a person give permission for the search, evidence is

admissible. Consent is a wruver of rights under the 4th Amendment.

Automobile Exception: Why: 1.

2.

Probable Cause

International Borders:

Notes:

Why?

THE MIRANDA WARNING:

The Constitution reserves many rights for those suspected of crime. One of the fears of
the Framers was that the government could act however it wished by simply saying an
individual was a suspected criminal. Many of the rights in the Constitution and the Bill o f
Rights, such as habeas corpus, the right to remain silent, and the right to an attorney, are
designed to ensure that those accused of a crime are assured of those rights.
Police were able to take advantage of the fact that not everyone knows their rights by
heart. In fact, it is likely that most citizens could name a few of their rights as accused
criminals, but not all of them. The police's position was that if the accused, for example,
spoke about a crime without knowing that they did not need to, that it was the person's
fault for not invoking that right, even if they did not know, or did not remember, that they
had that right.
This was the crux of the issue in Miranda v Arizona. In 1963, Emesto Miranda was
accused ofkidnapping and raping an mildly retarded woman. He was
brought in for questioning, and confessed to the crime. He was not told that he did not
have to speak or that he could have a lawyer present. At trial, Miranda's lawyer tried to
get the confession thrown out, but the motion was denied. In 1966, the case carne in front
ofthe Supreme Court. The Court ruled that the statements made to the police could not
be used as evidence, since Miranda had not been advised of his rights.
Since then, before any pertinent questioning of a suspect is done, the police have been
required to recite the Miranda warning. The statement, reproduced below, exists in
several forms, but all have the key elements: the right to remain silent and the right to an
attorney. Tbese are also often referred to as the "Miranda rights." When you have been
read your rights, you are said to have been "Mirandized."
Note that one need not be Mirandized to be arrested. There is a difference between being
arrested and being questioned. Also, basic questions, such as name, address, and Social
Security number do not need to be covered by a Miranda warning. The police also need
not Mirandize someone who is not a suspect in a crime.
As for Ernesto Miranda, his conviction was thrown out, though he did not become a free
man. The police bad other evidence that was independent of the confession, and wheh
Miranda was tried a second time, he was convicted again. After release from prison,
Miranda was killed in a barroom brawl in 1976 ..

The following is a minimal Miranda warning, as outlined in the Miranda v Arizona case.
You have the. right to remain s.ilent. Anything you say can and will be used against you in
a court oflaw. You have the right to speak to an attorney, and to have an attorney present
during any questioning. If you cannot afford a lawyer, one will be provided for you at
government expense.

The following is a much more verbose Miranda designed to cover all bases that
a detainee might encounter while in police custody. A detainee may be asked to sign a
statement acknowledging the following.
You have the right to remain silent and refuse to answer questions. Do you understand?
Anything you do say may be used against you in a court oflaw. Do you understand?
You have the right to consult an attorney before speaking to the police and to have an
attorney present during questioning now or in the future. Do you understand?
If you cannot afford an attorney, one will be appoin.ted for you before any questioning if
you wish. Do you understand?
1 you decide to answer questions now without an attorney present you will still have the
right to stop answering at any time until you talk to an attomey. Do you understand?
Knowing and understanding your rights as I have explained them to you, are you willing
to answer my questions without an attorney present?
http://www.usconstitution.net/miranda.htrnl

Reaso,for Miranda -To eliminate ambiguities ofwhether a confession is

voluntary or coerced.
Miranda may be waived

1.) voluntarily
2.) with full knowledge
3.) under no coercion

Can a waiver ofMiranda be implied? The Supreme Court ruled in North

Carolina v. Butler that while mere silence is not a waiver, silence plus words or
actions by the defendant, which suggest a waiver, may be deemed a waiver.

Notes:

As a defense attorney: If a suspect acknowledges understanding of Miranda,

under what circumstances might you prove he did not understand?

Once Miranda Rights are invoked:

1. Police must scrupulously honor invocation
2. Police must immediately cease questioning and wait for a
significant passage of time before interrogation
3. Read Miranda Rights prior to questioning

Right to Counsel
Once a subject has invoked his right to an attorney can he still be interrogated?
Yes (Oregon v. Bradshaw) but only if the subject initiates the
interrogation by uttering a further comment regarding tbe situation
at hand.

EXCEPTIONS TO MIRANDA
l. Quarles- Pnblic Safety Exception -(valid in Massachusetts)

2. For Purposes oflmpeachment- (not in Massachusetts)

3. Fruits of the Poisonous Tree of Miranda Violation -are not subject to the
Exclusionary Rule (testimonial and physical evidence)

Violation ofMiranda?

Notes:

TABLE 7.4
Cases Affirming Miranda: Evidence Ruled Not Admissible
Factual Situation

1. U.S. v. Henry(1979)
2. Edwards v. Arizona (1981 )
3. Smith v. Illinois (1985)
4. Michigan v. Jackson (1986)

5. Arizona v. Roberson (1988)

6. Minnick v. Mississippi ( 1990)

7. Dickerson v. Un;ted States (2000)

8. Missouri v. Seibert (2004)

Cases Affirming a

Miranda

Questioning of defendant without a lawyer after

indictment.
No valid waiver of right to counsel.
After invocation of right to counsel during
questioning.
Right to counsel invoked at arraignment.
Invoking Miranda for one offense, admissible for
second offense?
When counsel is requested, the suspect has the
right to have an attorney present during the
interrogation.
Failure to give warning before interrogation.
Miranda rights to make a second confession.

Cases Eroding Miranda: Evidence Ruled Admissible

Factua l Situation

1. Harris v. New York(1971)

2. Michigan v. Tucker (1974)
3. Michigan v. Mosley (1975)
4. New York v. Quarles (1984)

5. Berkemer v. McCarty (1984)

6. Oregon v. Elstad ( 1985}

7. Moran v. Burbine (1986)

8. Colorado v. Connelly (1986)

9. Connecticut v. Barrett (1987)
10. Colorado v. Spring (1987)
11. Arizona v. Mauro (1987)

12. Pennsylvania v. Bruder (1988)

13. Duckworth v. Eagan (1989)
14. Michigan v. Harvey(1990)
15. Illinois v. Perkins (1990)
16. Pennsylvania v. Muniz ( 1990)
17. McNeil v: Wisconsin (1991)

18. United States v. Pantane (2003)

19. Chavez v. Martinez {2003)

20. Yarborough v. Alvarado (2004)

Impeachment of credibility.
Collateral derivative evidence.
Questioning on an unrelated offense.
Threat to public safety.
Roadside questioning of a motorist pursuant to
routine traffic stop.
Confession obtained after warnings given
following earlier voluntary but unwarned
admission.
Failure of police to inform suspect of attorney
retained for him.
Confession following advice of God.
Oral confession.
Shift to another crime.
Officer recorded conversation with defendant's
wife.
Curbside stop for traffic violation.
Variation in warning.
Impeachment of testimony.
Officer posing as inmate.
Routine questions and videotaping DWI.
Invoking a suspect's Sixth Amendment right to
counsel does not amount to an invocation of the
right to counsel derived by Miranda.
Physical evidence found as a result of unMirandized but voluntary testimony can be used
in court.
Coercive statements made while in custody that
were not used against the suspect do not violate
the Fifth Amendment.
Deciding when a suspect is in custody and, thus,
entitled to a Miranda warning.

SOURCE: Adapted and updated from Rolando del Carmer:, Criminal Procedure: Law and Practice (Pacific
Grove, CA: Brooks/Cole, 1991). p, 307.

70

Outline: The Criminal Justice Process, Investigation Phase

J_ Basics ofthe Fourth Amentbt1e11t: The Fourth Amendment of the Constitution provides, "The right of the people to
be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be
violated, and no warrants shall issue, but upon probable cause, supported by Oath or affumation, and particularly
describing the place to be searched, and the persons or things to be seized."

II. Armts and other detentions:

A. ARREST: To take a person suspected of a crime into custody.

L What's needed before police can make an arrest? In order to make an arrest, a police officer needs to
establish "probable cause." For there to be probable cause to arrest a person, it must be more likely than not that:
a. a violation of the law has been committed; and
b. the person to be arrested committed the violation
NOTE: Arrests may be executed with a warrant or not, depending on the situation.

2. Necessity of an arrest warrant: An arrest warrant wiU rarely be required. Only when the police need to enter a
private home to make the arrest, and a couple of other situations, does the Fourth Amendment require the police to
get an arrest warrant before they make an arrest.

Why do you think the law requires an arrest warrant to go into a person's home?
Point: _____________________________________________________________________________

What if the police are chasing a felony suspect and he runs into his own dwelling? Can the pollee enter and
arrest the suspect if d1ey are in "hot pursuit"?
Point: --- -------------------------------------------- - - - - - - - - - - - - - - - - - - - -

What if the police arrive to arrest a suspect and they reasonably believe th<at the suspect will destroy evidence
(such as in a drug case) if they delay their entry until they can get a warrant?
Point ___________________________________________________________________

B. STOP AND QUESTION: A "stop and question" occurs when police stop someone and question someone
whom they reasonably suspect to be involved in criminal activity. Here, the police may stop the person temporarily
to ask for identification and for an a-planation of the suspicious behavior.

1. What's needed before police can stop a person and question him/her? Where a police officer obsertes
unusual conduct that leads him reasonably to conclude that criminal activity is going on, he may bnefly detain the
suspect in order to make inquiries. Probable cause is not required - reasonable suspicion, based on objective
facts, that the individual is involved in criminal activity, will be enough.

What if an officer stops someone because he has a "gut feeling that things were really wrong''? Is this
reasonable suspicion?
Point: ____________________________________________________________________________

71

What if the police officet sees a kid walk up to a curb to a car waiting there, gives the passenger in the car a bag
and takes a twenty dollar bill? Can he stop the kid and ask him questions?
Point: __________________________________________________________________________

Ill. Searches and Sttf{Jm:

A. WHAT IS A SEARCH? W'hen we talk about searches, we are talking about police going through and searching
people's houses, cars. property", and persons for contraband (goods that are against the law) . Generally, courts have
found searches and seizut'es reasonable when authorized by a valid warrant. In addition, courts have recognized that
certain searches conducted without a warrant can also be reasonable, in certain l.imited circumstances.
In either case, a person has to have what the Supreme Court called a "reasonable expect.ation of privacy" before
any search can be held to be no good. Look at the following and ask yourself: are these situations such that a person
would privacy?

Defendant puts some papers m a public trash bin, unaware that the police are watchmg his conduct. Can the
police retrieve the trash and search for the papers?
P oint _____________________________________________________________________________

What if a person says something in public and a police officer overhears the conversation?
Point ________________________________________________________________________________

What if the defendant owns a 100 acre farm, with a farmhouse near one edge. Defendant grows pot in the very
center of the 100 acres. The fields are not part of the curtilage. If the officer enters the property and photographs
the marijuana plants, is this an infringement?
Point=--------------------------------------------------------------------------------

NOTE II: THE EXCLUSIONARY RULE: In studying searches and seizures, it is important to understand that
if a court finds a search is unreasonable, the evidence found in the search can't be used in the trial. This is called the
exclusionary rule. It doesn' t mean that there can't be a trial or a conviction. It jusr means that the evidence can>t
be used.

B. SEARCHES WITH A WARRANT:

1. What is needed for police to obtain a search warrant? A search warrant is a court order obtained from a
judge who is convinced that there is a real need to search a person or place. Before a judge issues a warrant,
someone, usually a police officer, must ftle an affidavit that provides the probable cause to believe that a search is
justified. If a judge issues a search warrant, the warrant must specifically describe the person or place to be searched
and the particular things to be seized.
Probable cause h ere means that it must be more likely than not that;
a. the specific items to be searched for are connected with criminal activities; and
b. these items will be found in the place to be searched.
2. Execution of warrants: The Fourth Amendment requjres that the procedures that the police use in carrying out
a search not be unreasonable." Thus, in general, the police may not behave in an improperly intrustve manner.

72-

What if defendant is a narcotics suspect, believed to be carrying a small amount of drugs. He gets away from the
police shortly before they come to arrest him at his house. Can they break into his house -without identifying
themselves or ringing the doorbell?

Pomt: ____________________________________________________________________________

If the police have a search warrant, can they search everyone in the room that they enter? Who can they search?
What jf people try to leave?

Pomt ____________________________________________________________________________
What if police, in conducting a legal search pursuant to the warrant for weapons/stolen money from a bank
robbery, come across items nor listed in the warrant, such as cocaine on the living room table? Can they be seized?
Point: ____________________________________________________________________________

C. SEARCHES WITHOUT A WARRANT:

1. Why would police search without a warrant? Although the police are generally required to get a search
warrant before conducting a search, the courts have recognized a number of situations in which searches are
reasonable and may be legally conducted without a warrant Why? Usually because of the immediacy of the
situations and the potentjal for lost evidence or even harm to officers.
2. What kinds of situations allow for a warrantless search? (1) Search incident to a lawful arrest; (2) Stop and
Frisk ("Terry Stop"); (3) Consent searches; (4) Plain View; (5) Hot pursuit; (6) Vehicle searches; (7) Emergency
situations; (8) Border and Airport searches.
a. Search incidettt to a /.auful arrest. Tn general, when the police are makmg a lawful arrest, they may search the area
within the arrestee's control. This is known as a "search incident to arrest." Search-incident-to-arrest is the most
important exception to the general rule that a search warrant i.s required before a search takes place.

Officer watches a defendant run out of a coin shop at night, while the shop's alarm is ringing. Assummg that
these facts give Officer probable cause to arrest the defendant (which they almost certainly do), can the officer
conduct a full search of the defendant's person?

Pomt: _____________________________________________________________________________

Officers come to arrest the defendant at his house for a recent robbery. They have an arrest warrant but no
search warrant. After arresting the defendant, the police conduct a full scale search of the defendant's threebedroom house, They ruscover some of the stolen property in one of the bedrooms, not the mom in which they
arrested the defendant.
Point _____________________________________________________________________________

73

What about an automobile search in6deot to an arrest? Do you think that police can search the entire car of a
defendant who has been lawfully arrested?

Pomt: ________________________________________________________________________________

b. CofJJ'ellt J'ean;hes: The police may make a warrantless search if they receive the consent of the individual whose
premises, effects, or person ate to be searched.

What would happen if the police ask someone if they can search someone's house, car, etc. and the person
allows it, but she doesn't know she can refuse? Is the search valid?

Pomt ________________________________________________________________________________

What if the police ask to search your house, and merely threaten to get a warrant? If a defendant allows a search
then, is 1t valid?
Pomt: ________________________________________________________________________________

c. Cortmtt by tbi!d persons: Be careful of consent issues raised when the police seek. the consent of one person for the
search of the property of another, or for the search of an area as to which another has an expectation of privacy-the mere fact that the first person has voluntarily consented does not mean that the police may conduct the search
and tnttoduce evidence against the second person. In general, A may not consent to a search that would invade B's
expectation of privacy- onl5' if special circumstances elcist (e.g. both A and B have authority over the premises)
will A's consent be in effect binding on B.

What if a wife consents to allow a search of her husband's belongings? Valid?

Point ________________________________________________________________________________

What if a parent consentS to a search of his/her child's room? Valid?

Point: ________________________________________________________________________________

"What if a landlord consents to a search of a tenant's apartment? Valid?

Point; ________________________________________________________________________________

\Xlhat about an employer consenting to a search of an employee's work area? Valid?

Point; --------------------------------------------------------------------------------

d. Plain Vie11r. The "plain view" doctrine is often applied to allow police who are on premises for lawful purposes to
make a warr-antless seizure of evidence that they come across.

Officer is walking down the street, and he happens to glance through the picture window of the defendant's
house. He spots the defendant strangling the victim to death with a stocking. Can the officer give testimony at
the defendant's trial about what he saw?

Point: ____________________________________________________________________________

OHicer is legally

tn a defendant's apamnent. Officer notices an expensive stereo. He picks the stereo up. reads
the serial number on the bottom, and learns by phone that a unit with that number has recently been stolen.
Can he use this evidence against the defendant?

Point ____________________________________________________________________________

What about plain smell? What tf an officer uses a tra.J.ned dog at an airport (where he has a right to be) to smeU
drugs? Is a search of a defendant's bag after a dog signals "pot!" valid?

Point: --------------------------------------------------------------------------e. V ehicle Searches: According to the textbook, a police officer who has probable cause to believe that a vehicle
contains contraband, or illegal items, may conduct a search of the vehicle without a warrant. This doesn't mean that
the police have the righr to stop and search any vehicle on the streetS. The right to stop and search must be based
on probable cause.

Officer pulls over defendant for speeding. When he approaches the window, he notices a small bag of white
powder on the front seat. Can he search the car for drugs?

Pom.r. _____________________________________________________________________________

Officer observed Goodman's car change lanes ,!V(thout proper stgnaling. Jones stops Goodman and begins to
write a ticket Has a hunch, decided to search car. fi'inds drugs .. .OK search?

Point: _____________________________________________________________________________

The police, hearing a description of the getaway car used in a robbery, stop a car meeting that description,
driven by a defendant. They arrest the defendant, and take the defendant and the car to the station-house.
There, they search the car without a warrant, and find incriminating ev;dence. Is this search valid?
Point: _____________________________________________________________________________

If the police have probable cause to believe that the driver of a carts carrying drugs, can they stop the car and
do a drug search on the car?
Point: _______________________________________________________________________
Point _____________________________________________________________________________

75

SCHOOL SEARCH CASE STUDY

A junior contacted the high school vice-principal to report that another junior student,
Michael Slattery, was selling marijuana in the school parking lot. The vice-principal had
received reports that Slattery was involved with drugs before from a senior who had
provided the vice-principal with reliable information about illegal activities of other students
in the past.
The vice-principal then called Slattery into his office and asked him to empty his pockets.
Slattery was carrying $230 cash in small bills and a piece of paper with a telephone pager
number on it. The vice-principal knew that drug dealers often use pagers. The viceprincipal called school security who searched Slattery's locker but found nothing.
When the vice-pri ncipal told Slattery they would have to search his car, wh ich was parked in
the school lot, Slattery refused. After speaking to Slattery's mother by phone, Slattery
turned over the keys. The school officials found a pager and a notebook inside the car. The
notebook had names with dollar amounts written next to the names. They opened the
locked trunk of the car and found a locked briefcase. Slattery first said he didn't know who
owned t he briefcase, then he said a friend owned it and that he did not know the
combination. The school security officers pried it open and discovered 80.2 grams of
marijuana. Police were ca lled and Slattery was arrested.
Slattery claims that the searches of his official person, h is locker, car, and locked briefcase
were unconstitutional. Decide if the searches were constitutional and give your reasons.

7&1

PATRIOT ACT
Congress passed the Patriot Act shortly after the September 11 terrorist attacks.
Did this law go too far in the name of national security?
Terrorists struck America on September 11, 2001. Highjacking four planes, they flew two
ofthem into the World Trade Center towers in New York and another into the Pentagon
in Washington. The fourth plane crashed in Pennsylvania before it reached its target in
Washington. Within two hours, both of the massive 110-story twin towers had collapsed.
A wing of the Pentagon was severely damaged. More than 3,000 people died in the
attacks. Two days later, the White House identified the culprits as members of AI Qaeda.
an Islamic fundamentalist terrorist group based in Afghanistan but with terrorist cells
throughout the world. The hijackers had worked out of AI Qaeda terrorist cells operating
in the United States. No one knew whether more terrorist attacks were coming.
Soon after September 11 , U.S. Attorney General John Ashcroft brought before Congress
a list of recommended changes in the law to combat terrorism. Some of these measures
had long been opposed by members of Congress as infringing on the rights of Americans.
But September 11 had swept away all previous objections. The U.S. Senate quickly
passed the USA PATRIOT ACT (Uniting and Strengthening Ameri.c a by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism). Only one senator,
Russell Feingold (D-Wis.), voted against it.
The next day, the House of Representatives passed the bill 357-66. The final bill was 342
pages long and changed more than 15 existing laws. Most of the Justice Department's
recommendations were incorporated into it, but several provisions will expire in 2005.
On October 26, President George W. Bush signed the Patriot Act into law. He praised the
"new tools to fight the present danger . .. a threat like no other our Nation has ever
faced.'' He also asserted that the Patriot Act "upholds and respects the civil liberties
guaranteed by our Constitution."
The Patriot Act defines "domestic terrorism" as activities within the United States that . ..
involve acts dangerous to human life that. .. appear to be intended--

(i) to intimidate or coerce a civilian population;

(ii) to influence the policy of a government by intimidation or coercion; or
(iii) to affect the conduct of a government by mass destruction, assassination, or
kidnapping.. . .
The Patriot Act and Privacy

/ 7

Some of the most controversial parts of the Patriot Act surround issues of privacy and
government surveillance. The Fourth Amendment to the U.S. Constitution protects the
"right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures .... " It requires law-enforcement officers to obtain
warrants before making most searches. To get a warrant, officers must make sworn
statements before a judge "particulruIy describing the place to be searched, and the
persons or things to be seized." The judge may only issue a search warrant if officers
show "probable cause" that the person is engaged in criminal activity. Federal law
requires that officers report to the court on the results of the search.
Surveillance such as wiretaps and physical searches requires officers to prove "probable
cause" of criminality. Even before the Patriot Act, there were exceptions under federal
law.
One was for so-called "pen-trap" orders. To obtain from a telephone company the
numbers dialed to and from a particular telephone, officers must get a pen-trap order
from a judge. They do not need to show probable cause, but must certify that the
information is needed for an ongoing criminal investigation. The reason for the lesser
standard is that these records are far less intrusive than wiretaps and physical searches.
Another major exception was for matters before the Federal Intelligence Surveillance
Court. Congress created the court in 1978 following scandals revealing that U.S.
intelligence agencies had spied on hundreds of thousands of American citizens, most
notably the Reverend Martin Luther King Jr.

.i

Public Opinion on the Patriot Act

!Should the government take aU steps necessary to prevent additional acts of

Iterrorism in the U.S. even if it means your basic civil liberties would be violated?
;Or should the government take steps to prevent additional acts of terrorism but not
if those steps would violate your basic civil liberties?
Aug.

Jan. 2002

29%

47%

67%

49%

4%

4%

2003
:Take steps>even if civil liberties
)violated
!Take steps but not violate civil
!liberties
:No opinion

Do you think the Bush administration bas gone too far, has been about right, or bas
not gone far enough in restricting people's civil liberties in order to fight terrorism?

Aug.2003Jun.2002
Too far

21%

11%

About right
Not far enough
No opinion

55%
19%
5%

60%
25%
4%

How familiar are you with the Patriot Act: very somewhat familiar, not too
familiar, or not at all familiar?
Very familiar
Somewhat familiar
Not too familiar
Not at all familiar
No opinion

10%
40%
25%
25%

1(Aug. 2003)

Source: The Gallup Organization

The cowi was a compromise between those who wanted to leave U.S. intelligence
agencies free fiom any restrictions and those who wanted intelligence agencies to apply
for search warrants like other law-enforcement agencies. Congress required U.S.
intelligence agencies (the FBI and National Security Agency) to apply for warrants for
wiretaps and other surveillance on foreign governments and suspected foreign agents. But
because the agencies are not investigating domestic crime, they do not have to meet the
probable cause standard. They onJy have to certify that the purpose of the investigation is
to track a foreign government or agent. They do not have to report to the court on the
results of the surveillance. The court meets in secret with onJy government
representatives present and has never denied an intelligence agency's application for a
search warrant.
The Patriot Act expands all these exceptions to the probable-cause requirement. Section
215 of the act permits the FBI to go before the Foreign Intelligence Surveillance Court
for an. order to search for "any tangible things" connected to a terrorism suspect. The
order would be granted as long as the FBI certifies that the search is "to protect against
international terrorism or clandestine intelligence activities [spying]." But the FBI would
not need to meet the stronger standard of probable cause.
The Patriot Act now authorizes this court to issue search orders directed at any U.S.
citizen who the FBI believes may be involved in terrorist activities. Such activities may,
in part, even involve First Amendment protected acts such as participating in non-violent
public protests.

ln Section 215, ''any tangible things" may include almost any kind of as
books, documents, and computers. The FBI may also monitor or seize personal records
held by public libraries, bookstores, medical offices, Lnternet providers, churches,
political groups, universities, and other businesses and institutions.

79

The Patriot Act prohibits third parties served with Section 215 orders such as Internet
providers and public librarians to inform anyone that the FBI has conducted a search of
their records.
Section 216 of the Patriot Act extends orders to include e-mail and web
browsing. The FBI can ask lntemet service providers to turn over a log of the web sites a
person visits and the addresses of e-mail coming to and from the person's computer.
Another area of concern is Section 213 of the Patriot Act. It authorizes so-called ''sneakand-peek" searches for all federal criminal investigations. When applying for a search
warrant, officers may show that there is "reasonable cause to believe that providing
immediate notification ... may have an adverse result." If the judge approves, then the
FBI can delay notifying a citizen about the search for a "reasonable period.'' Thus, the
FBI may search a citizen's home or business in secret. The FBI says these searches may
be necessary to prevent the destruction of evidence or to keep from jeopardizing an
ongoing secret investigation.

The Debate Over the Patriot Act

According to the Bill of Rights Defense Corrunittee, three states (Alaska, Hawaii, and
V ennont) and 149 cities, towns and counties have passed resolutions protesting
provisions of the Patriot Act. In response to criticism of the act, may be having
some second thoughts. TI1e House of Representatives voted 309-118 to repeal usneakand-peek" searches. ln the Senate, Senators Lisa Murkowski (R-Alaska) and Ron Wyden
(D-Ore.) have introduced the Rights of Individuals Act. This is a comprehensive bill,
addressing a number of issues related to the Patriot Act. One part of the MurkowskiWyden bill would limit "sneak and peek" searches. Those whose homes or offices had
been searched under "sneak and peek" would have to be notified within seven calendar
days.
Attorney General Ashcroft and other Americans defend the Patriot Act. "We are at war, 11
Ashcroft says, "and we have to do things differently than we did before. " He points out
that the only purpose of the Patriot Act is "to prevent terrorists from unleashing more
death and destruction. 11 Ashcroft also argues that the courts and Congress still safeguard
the constitutional rights of Americans.
Public opinion has consistently supported the Patriot Act. An August 2003 Gallup Poll
asked whether the Patriot Act goes too far, is about right, or doesn't go far enough in
restricting people's civil liberties, Only 21 percent responded that it goes too far. Fiftyfive percent said it is about right, and 19 percent answered that it does not go far enough.

ln June 2003, the attorney general called for another law to further strengthen the powers
oflaw enforcement to fight terrorists. Called "Patriot Act Il" by critics, the proposed new
law would, among other things, enable the government to ask a court to revoke the
citizenship of any American who provides "material support" to terrorists.

The courts are just beginning to review the constitutionality of the Patriot Act. In the first
major legalchallenge to the Patriot Act, the American Civil Liberties Union (ACLU) filed
a lawsuit in July 2003 against Section 215 searches. The suit argues
that these searches violate the Fourth Amendment's protection against unreasonable
searches and seizures as well as First Amendment freedoms of speech and association.
In a report called "Unpatriotic Acts,'' the. ACLU warned that American freedom was
endangered by the Patriot Act:
Section 215 is likely to chill lawful dissent. If people think that their conversations, their
emails, and their reading habits are being monitored, people will feel less comfortable
saying what they think--especially if they disagree with government policies.

In a Washington Post opinion piece, Heather MacDonald, a writer at the Manhattan

Institute, defended the Patriot Act. She countered the ACLU by stressing that Section 215
requires a court order. She said there was no reason for anyone to feel "afiaid to read
books" or "terrified into silence." "Were that ever the case, it would be thanks to the
misinformation spread by advocates and politicians, not because of any real threat posed
by" the Patriot Act.
It will be quite some time before cases like the ACLU lawsuit will reach the U.S.
Supreme Court. The basic question that the court will have to answer is: What is the
proper balance between national security and protecting individual rights?

For Discussion and Writing

1. How does the Patriot Act define "domestic terrorism"? Do you think participants

in public protests could ever be accused of "domestic terrorism" under this

definition? Why or why not?
2. The Justice Department has proposed that the government should be able to ask a
court to revoke the citizenship of any American who provides ''material support"
to terrorists. Do you support the proposal? Why or why not?

3. Below are two famous quotations. What do they mean? Which, if any, do you
agree with? Explain.
Those who would give up essential liberty to purchase a Little tempormy safety
deserve neither liberty nor safety. -- Benjamin Franklin ( 1706-1790)
There is danger that, if the [Supreme Court} does not temper its doctrinaire logic
with a little practical wisdom, it will convert the constitutional Bill of Rights into
a suicide pact.--Justice Robert H. Jackson, dissenting in Terminiello v. City of
Chicago ( 1949)

CRIMINAL LAW

CRJMJNAL LA \V:
Requirement: mens rea- a criminal state of mind
L

2.
3.
Exception: strict liability: guilty whether or not one knows
Eg:
Each Crime has ELEMENTS that must exist in order to commit the crime
A single act may both a criminal act and a civil wrong

PARTIES TO A CRIME:
1. Principal
2. Accomplice
3. Accessory (Before/ After)

CLASSES OF CRIMES

FELONYMISDEMEANOR ?Are witnesses obligated to report crimes?

PRELIMINARY CRIMES:

Solicitation:
Attempt:
1. Intent to commit the crime
2. Substantial Step

a. preparation
b. proximity
c. perpetration (not mere preparation)

Conspiracy:
I.
2.

Withdrawal from conspiracy:

Bob asks Alice to help him and they both agree to enter Bob's home late at night through
the basement window in order to take $400 in a box that is kept locked in a desk drawer.
They drive to the location, break the lock on the door and enter. For what crimes may
they be charged?
Rule:

Carl and Dave meet Ed, whom they do not know, at the park one Friday morning. Carl
and Dave plan to shoplift some !Phones from the local App1e Store and Ed overhears
their conversation. As Carl and Dave walk out of the park, Ed follows and he is handed
an empty backpack by Ius two new friends. The trio saunters down Washington Street
past fb.e Apple Store, turn around at the comer, and start back toward the entrance. Dave
enters fust; Carl and Ed look at each other. Carl enters. Ed coughs and decides not to
enter; in fact, he nervously hails a cab and leaves the area. Carl and Dave fill their packs,
exit the store casually, and meet Frank who has the motor running in his SUV outside the
side entrance.
Identify and label the parties:

For which crime(s) may each party be charged:

What defenses, if any, might each party bring forth?

Notes:

,. tiJ.
I

lo

'-'f\.- ... " .... ""'"""'';........If\,....

.._

1.

."'""" ' . ,.__ .

5.

7.
C l r-.1 IDI: .d

'

Outline: Introduction to Criminal Law (Ch. 8)

Tbe Elr:menti qj C1ime: All crunes have several basic common elements: (1) a voluntarr act ('actus reus"); (2) a
culpable intent ("mens rea"); (3) "concurrence" between the mens rea and the actus reus; and (4) cattsatton ufhat:m
(a link between the act and the result).
I. Actus Reus:

ThoJ.I_glits. worr/.1, pM.rc.i'.i'liJ17:

1. 0 writes m his dia.t:y "1 intend to kill V." l5 this statemen t enough to constitute any crime?
Point: _______________________________________________________________________________

2. Dis caught with drugs. i\t trial, he says that he didn't know he had rl1em; they were in a bag that was given to
him by a friend . The ft.iend testifies and states that tndeed, he did not relllus friend that drugs were in the bag
when he gave it to D. Guilty?
Point: ___________________________________________________________________________________

V oluntary _4 ct:
3.. D, while walking down the street, 1s stticken by epilep tic convulswns. his arm Jerks back, and he stnkes X in the
face. Assault and battery?
Point: ___________________________________________________________________________________
4. What if the same d efendant, knowing that he is epileptic., gets behind the whee.! of a car, drives and has a seizure
while driving. During the seizure, he loses conttol of the cat and hits someone, killing her. Is he criminally
liable?
Point: ___________________________________________________________________________________
5. Newton was charged with the murder ofJohn Frey, a police officer who died of bullet wounds received 1!1 a
struggle wtth defendant. A jury found him guilty of voluntary manslaughter. Frey stopped a car driven by
Newton and ordered him out of tbe ca.t and an altercation ensued. From the testimony of the prosecution's
witnesses, it appeared that Newton had drawn a gun and, in the struggle for .its possession, the gun went off and
wounded Heanes, another police officer, the struggle continued and Heanes fired a shot at Newton's
midsectJoo. A t some point, Newton wrested the gun away, and fired several shots point blank at Frey. He then
ran away. Shortly afterward, Newton appeared at the hospital room, seeking treatment for a bullet
wound in the abdomen. Newton testified that he had carried no gun. According to his account, the sr.ruggle
began when Frer struck him for protesting his arrest. As he stumbled backwards, Frey drew a revolver. !\t this
poin t. he felt a "sensation like ... boiling hot soup had been spilled on my stomach," and heard an "explosion,"
and then a "volley of sh ots." He remembered ''crawling.. .a mOvUlg sensation," but norhing else until he found
lu.roself at the entrance of Kaiser H ospital 'W-ith no knowledge o f how he arrived there. He expressly testified
that he was "unconscious or semiconscious" durll1g this intcrta.L that he was "still only semiconsClous" at the
hospital entrance, and rhat- after recalling some events at the hospital - he later ' 'regained consctousness" at
another ho!:ipltal.
T he defense called Dr. Bernard Diamond who testified that defendant's recollections were "compatible'' with
the gunshot wound he had received and that "a gunshot wound which penettates in a body cavitY> the
abdominal cavity or the thoracic cavity is very likely to ptoduce a profound reflex shock reaction, that is qwtc

Jtfferent than a gunshor wounJ which penetrates only skin and muscle and ic is not ar all uncommon for a
person shot in the abdomen to lose consciousness and go into tlus rctlex shock condition fo1 short periods of
time up to half an hour or so." Defendant asserts prejudic.iaJ error in the trial court's failure to instruct the jUl')'
on the subject unconsciousness as a defense to 2 charge of cri.m.1.nal homicide. What do you think?
Pomt=------------------------------------------------------------------------------6.

f\lrs. Cogdon was charged with the murder of hex only child, he.r daughter Pat, 19. l'vlrs. Cogdon told how, on
the night befute her daughter's death she had dreamt that their house w:1.s full of spiders and that these spiders
we.re crawling all over Pat. 1n her sleep, l\1rs. Cogdon left the bed she shared with her husband, went imo Pat's
worn and awakened to End herself violently brushing at Pat's face, presumably to remove the spiders. This
woke PaL Mrs. Cogdon told her she was just tucking het in. At the tnal, she testified that she still belie,ed, as
she had been told, that the occupants of a nearby house bred spiders as a hobby, preparing nests for them
behind the pictures on their walls. Ttwas these spiders, which in her dreams had invaded their home and
attacked Pat. There had also been a previous dream in which ghosts had sat at the end of Mrs. Cogdon's bed
and she has said to them "\V'ell, you have cotne to take Pattie." The moming aftt:r the spider dream she told her
doctor of it. He gave her a sedative and, because of dte dream and certain previous difficulties she had reported,
discussed the possibility of psychiatric treatment. TI1.at evening Mrs. Cogdon suggested to her husband that he
attend his ludgc meeting,. and asked Pat to come with her to the cinema . .After he had gone, Pat looked through
the paper, found no good movies to see, and decided to go to bed early. Later while Pat was ta.kJ.ng a bath
before bed, M1s. Cogdon went mto her room put a hot water bottle in the bed, turned back the sheets, and
placed a glass of hot milk beside tl1e bed ready fat Pat. She then went to bed herself. 1'here was some
conversation between them about the war in Korea, and just before she put out her light Pat called out to her
mother, "Mum, don't be so silly wonying about the war, it's not on ow front door step yet."
Mrs. Cogdon went to sleep. She dreamt that "the war was all around the house," that the soldiers were in
Pat's room, and that one soldier was on the bed attacking Pat This was all of the dream that she could later
recapture. Her first "waking" memory was of runn.i.ng from Pat's room, out of the houst: to the home of her
siste.r who lived nexl door. When her sister opened the front door Mrs. Cogdon fell into het arms crying, "I
think I've hurt Pattie." ln fact IVlrs. Cogdoo. had, in her somnambulistic (sleepwalking) state, left her bed,
fetched an a.xe from the woodheap, entered Pat's room, and struck her two accurate forceful blows on the
with the blade of the axe, thus killing her. Is this murder?
Pomt= -----------------------------------------------------------------------------------

Omissionr

7.

rn each of these situation, someone could be criminally liable, not because he/ she did something, but because
he/she didn't do something. Is there criminal liability when:
D sees V, a stranget, drowning in front of him. D could eastly rescue V. He doesn't.
Parent fails to gi,e food at water to Child, and C hild dies.
Lifeguard is hired by City to guard a beach. Lifeguard intentionally fails w save Victim from drowning, even
though he could easily do so.
d. D accidentally strikes child running across the street w1th his car. He doesn't stop. Crirninally liRble;:;
e. 0 digs hole in sidewalk in front of his house, acting legally under a building permit. 0 sees V about to step
in to the hole, but says nothing. V falls in hole and dies.
f. 1t snows and 0 has an .inch of 1ce on his sidewalk. He doesn' t put salt down. V walks on sidewalk aud faDs,
striking his head and killing him.
g. Vis drowning, whileD and three othe.rs are on the shore. D says, "l'll S\vi.m out to save V." The othe1:s
agree, and leave, thinking tl1.at D is taking care of the situation. D changes hi:. mind, doesn't even try to save
'\.' and V drowns.
a.
b.
c.

ll. Mens Rea

1. What are the dijjimntes m the mental states ofthe people u;bo
a.

l'O!'Ili?-Jil

the followzng crtlrtesl

0 hares V . Buys gun intending to use it to kill V. Sees him, pulls the gun, shoots and kills V.

Pomt: _______________________________________________________________________________
b. D, in <to act of euthanasia, kills V, his wife, who has terminal cancer.

Point: _______________________________________________________________________________
c. D consciously desires to kill A, and does so by putting a bomb on board a plane that contains both 1\ and
Both A and B are killed . (Look ar the mental state of 0 with regard to B's death).

n.

Point: _______________________________________________________________________________
d. D runs a nightclub with inadequate fue exits. A fire breaks out, killing hundreds. D knew the high risks of
nor having enough fire exits.

Point: _______________________________________________________________________________
c.

D swerves .in and o ut of trafftc on the expressway, traveling at speeds over 100 mph. H e loses control on a
sharp cmve, sn:ikes V's car and Vis killed.
Pou1t: _______________________________________________________________________________

f.

D h:.ts sex with a girl under the age of consent. He says that he didn't know she was that age ...be thought
she was 21.

Pomr: _______________________________________________________________________________

a. The needed mental state for larceny is the lntent to take property, which one knows or believes to belong to
another. D takes V's umbrella from a restaurant, think:i.ng that it is h.is own.
Point: ------------------------------------------------------------------------------b. D steals a n ecklace from a costume jewelry store. The necklace is made of diamonds. and is worth $10,000,
but D mistakenly believes it to be costume jewelry worth less than $500. ln the jurisdtccion, theft of
something worth less than $500 is a misdemeanor, and theft of somethmg worth more than tl1at is a felony .
What 1s he guilty of?
Pomt: _______________________________________________________________________________

CRIMES AGAINST THE PERSON

HOMICIDE (Murder): The killing ofone human by another

While hiking in the Rockies in late November Al and Bill were taken by surprise by a
ferocious blizzard that made descent from the peaks treacherous. They set up camp as
best as possible to wait out the stonn but soon realize their supplies are inadequate and
spare. The bljzzard rages for five days. Frostbitten and starving, Bill succumbs to
unconsciousness. The next day, Al, believing Bill has died, starts slowly cutting and
eating rus flesh to stave off certain death himself. Two days later, AI is rescued and Bill is
pronounced dead.

Is Bill guilty of murder?

If the coroner detennines Bill was deceased prior to AJ s dining
experience, what effect, if any, will that have on murder charges against
Al?

What defenses, if any, might Al claim?

CORPUS DELICTI- Those tllings that malce up a crime:

1. proof of death
2. proofofcriminality
Doe was found by the road with his wifes blood on his shirt. He brings police to her
body which is lying serenely, in no disarray, at the bottom of a ravine. Doe sustained
injuries from a fall, and at the hospital asks if his wife' s tongue was out when the found
her. Police find evidence of a scuffle on the cliff above the ravine. An autopsy shows
wife's cause of death was asphyxia due to strangulation. Doe is charged with first degree
murder. (People v. Downey SC Col 1950).
Issue: Was corpus delicti established beyond a reasonable doubt by the evidence?

Notes:

CRIMINAL HOMICIDE:
Must Prove: .M ENS REA: elilness ofthe. mind

If tile mind's intent is to hurt- murder

lftlte mind's intent is to trick--- manslaughter
BURDEN OF PROOF: State must prove defendant guilt beyond a
reasonable doubt
Murder: Unlawful killi11g with malice (express or impliecl)
Malice: ill will, wickedness, cruelty, recklessness, total disregard
for the welfare of another.
King bumped into Duke and Prince in a nightclub. When Duke and Prince left at 2am,
King tai1gated their vehic1e and fired 2 or 3 shots into the car. Both Duke and Prince were
unarmed, Duke died from the gunshot. King threw his gLm into a dumpster and it was
never recovered. Prince testified at trial that there was no provocation for the shooting.
(King v. State, Ct. Crim.App ALA, 1987)

Mens Rea?
Malice?
Malice Aforethought? (premeditation)?
Court: If probability of death is high, malice is implied
firing into ANY house
firing into ANY car
driving too fast on a busy street
Rule: Depraved Heart Murder= First Degree Murder

FIRST DEGREE MURDER:

a.
b.

..
Q)
.

plus

- - - -- - - -

FELONY MURDER;
Killing takes place during certain inherently dangerous felonies
arson
rape
kidnapping
burglary
robbery
attempt to commit any of the above
o Malice not required
Felony murder: elements of murder do not require proof; the reason for the murder is the
reason for the felony: Felony Murder Rule
What is the purpose behind the felony murder rule?

Two men, Mayle, a tall white male, and Hock, short and dark, wearing red ski
masks, break into a gas station at night. Witness states a tall man shot a police officer and
he saw both suspects run from scene. Friend's of Mayle said he was only "tending to
business". (State v. Mayle, SC App. WVA, 1987).
Is Mayle guilty of felony murder?

What are his defenses, if any?

Court: Continuous Transaction Battleground

Res Gestae: actual facts +circumstances prior to and following

Wilson breaks into and enters his estranged apartment one night to retrieve some
of his books. Much to his horror, he finds her with his best friend who starts coming at
Wilson with a carving knife. Wilson pulls out his gun which was in a pocket, shoots at
his friend but inadvertently hits and kills his wife. (People v. Wilson SC CA, 1969).
Felony Murder?

Defenses?

90

SECOND DEGREE MURDER

All elements of first degree murder without premeditation

a. look to the mens rea

b. cold and calculating v. rash impulse

Let the]ury decide:

Sally hosted a party for her co-workers and was especially excited be.cause her manager,
Luke, to whom she was quite attracted, arrived early to help set up. The guests arrived,
the festivities began, when Sally looked out to her balcony and noticed Alma, the office
flirt, focusing all her wanton ways on Luke. Deciding she had to "put an end to that little
rendezvous", SalJy, carrying a large tray of appetizers, swished out onto the crowded
balcony and " bumped" into Alma, sending her sailing off the balcony and to her death on
the pavement below.
What charges, if any, will be brought against Sally?

VOLUNTARY MANSLAUGHTER
a.

b.

Intent
Provocation

c. Heat ofPassion
Adequate provocation is the difference between second degree murder and voluntary
manslaughter. Let the jury decide:

Would a reasonable prudent objective person, under similar circumstances, fiml

adequate provocation to overwhelm rationality?

91

After many years of marriage, Al discovered his wife Betty was unfaithful and had been
for quite some time. Realizing her betraying ways, Betty was inconsolable; she
repeatedly made statements indicating she wished she were dead, she attempted suicide
three times, and constantly pleaded withAl to shoot her, tawlting him by asking, "what's
the matter, are you chicken?" On a Saturday morning Al shot Betty. (People v. Borchers,
S.C. CAL 1958). Ajw-y found AI to be sane and guilty of first degree murder.
this

finding:

,, "rj]
_, ..F

....

'

The last szraw;

---------------------------------------

Mitigating circumstances: _____________________

Which of the following is "Adequate Provocation"?

1. Verbal taunting and harassment:

2 . Being involved in a physical brawl:

3. Resisting false arrest:

4. lnsults and physical aggression:

5. Being born with "an Irish Temper":

Notes:

INVOLUNTARY MANSLAUGHTER: Look to Mens Rea

a.

b.

NEGJ..IGENT HOMICIDE:
o

Failure to exercise a reasonable amount of care in the

situation that causes harm.

Most common:

Start with the Reasonably Prudent Person Standard to determine wltether

Negligellt Homicide or l11volulltary A-fans/aughter.

Determine the charges:

Hardy was cleaning out his attic with his fiance Tess. In an old chest he found a
gun that used to belong to his grandfather. As he pulled the handgun from its
holster, it fired killing Tess instantly.

Sandy ran out to do some errands leaving her 8 year old daughter home napping
in her room. While Sandy was out there was a fire in the house. Her daughter did
not survive.
Running a red light get to the hospital for the birth of his new baby, Bob s truck
and killed a woman who was jay-walking.

93

ASSAULT AND BATTERY

Assault: Any attempt or threat to carry out a physical attack ( battery) upon
another person
Elements: Attempt
To Commit Battery

l.rmninent Ability to do so

Mark sees his long-time nemesis, Homer, across the street. Mark
stops, raises a baseball bat that he happens to be carrying, and shouts,

o u better run, you scum, because I'm ready to hit a homer!'' A
policeman overbears Mark and charges him with assault.

Battery: unlawful physical contact inflicted by one person upon another which is
objectionable or insulting or is obviousv objecrionable; unla'.ifui touching.
Actual injury is not required.

Every battery includes assault.

Eve1y attempted battery is assault.

Note:

Tort Theory v. Criminal Theory

(in many jurisdictions criminal assault also includes tort
defmition of intent to cause apprehension).

While Dave, an avid tennis player, is undergoing surgery for ripped ligaments in
his ankle, Dr. Sno, decides to tighten up the tendons in his leg as well in order to
prevent further injury. Dave is only told of the tendon-tuck when he is in physical
therapy. Dave decides to press criminal charges.

Notes:
Stalking: one person repeatedly follows or harasses another person and makes threats
causing the victim fear of bodily injury.
Harassment:

Hazing:

Doris works for Mike's Construction Company and is one of the only females on
the crew. During coffee breaks and lunch hour the men talk about their dates and
wives, often in not too flattering terms. Predictably, eventua1Jy the conversation
turns to off color jokes, usually about women. Doris is uncomfortable with this
routine; she feels demeaned and embarrassed by their banter. Doris .files
harassment charges.

Rape: unlawful, by force, without consent

Date rape

Acquaintance rape
Spousal Rape
Statutory Rape - strict liability
Ward and June have been dating for two years and plan to spend the rest of their
lives together. One night after the ninth grade of which they were the stars,
they agree to consummate their love under the stars at the beach. June tells her
parents of her wonderful evening. and to her dismay, criminal charges are filed
against Ward.

Notes:

95

CRIMES AGAINST PROPERTY

Arson: willful and malicious burning of another' s property

Vandalism: (malicious mischief): willful destruction or damage to of another's
propeny
Larcenv: unlawful
Taking
Carrying away
With intent to steal the property of another
Follow the "ball'' of possession (control); where is possession? How did he get it?
Larceny is trespassing upon someone else's possession (chattel).
Therefore, no trespass, no larceny
Ed grows marijuana in his basement. Sam enters Ed's b asement, packs up
the marijuana and brings it borne with him. Larceny?
Same facts as above except: Sam takes the marijuana to the local police
station and turns his friend in. Larceny?
Paul 's boss hands him the daily deposits and asks him to deposit it in the
bank. Paul decides to go to Mexico instead of the banlc Larceny?
Adele bought a summer home in Maine which bad been abandoned for ten
years. As she cleaned the attic, she discovered a diamond ring under one
of the floorboards. She put the ring in her pocket and continued her
chores. Three weeks later, she cleaned the ring and started to wear it.

Hal borrowed Rex' s horse to avoid the long walk back to his ranch. He did
not return the horse, but sold it to Dude. Larceny?

Jake loans Bart $10. One week later, Jake goes to Bart's house, sees $10
on the table and takes it. Larceny?

Robbery: Larceny + Assault

unlawful taking
By force or intimidation
From a person's immediate possession
Key lssue: Mens Rea

Mary was strolling down Newbury Street when a thief ran from behind,
snatched her purse right out of h er hands, and ran off into the sunset.
Robbery?

Amy was jogging down Mass Ave when a thief ran from behind, snatched
her iPod right out of her ears, and commenced to run off into the sunset.
Amy chased him, grabbed him from behind, but the thief pushed her away
and escaped. Robbery?

Dora was cycling down Storrow Drive when two men jumped out from a
shrub, and asked her to stop. She did. One man asked her what time it was,
when she looked at her watch, the other grabbed her wrist and took the
watch right off it. Robbery? For Whom?

Burglary: A Crime Against a Dwelling (as opposed to property)

Breaking and entering by one with no right of entry
Dwelling
At night*
With intent to commit felony
Mike creeps onto Doc ' s porch one evening intending to take his new
plasma television set. He notices the front door is wide open (probably
due to the current beat wave). As he crouches down on the porch, a gust of
wind blows several hundred dollar bills out ofthe house and they land at
Mike's feet. Mike scoops up the bills and runs. Later that night, he is
arrested for burglary.

c'/7

At dusk Mike slips into Fred's backyard through an opening in the fence
and takes Fred's grill.
Curtelage:
One night, Mike goes back to Doc 's house, sneaks through the open front
door, walks through the living room and gently opens the kitchen door
where he knows Doc keeps some cash. Mike takes the cash and leaves the
way he entered.

Biff sells magazines door to door. One night he approaches Mrs. Dee' s
home, rings the bell ...no answer. He sees her in the window and tells her
if she opens the door he has $100 to give her. Mrs. Dee opens the door and
Biffwalks in and takes her digital camera and some cash.
Constructive Breaking: Fraud
Trickery
Coersion
Alice the Cat, as she is called, decides to strike in the upscale
neighborhood of Unity in order to fmd some jewelry to pawn. Stealthily, she
climbs a ladder left by some daytime workers, lifts an unlocked window and
enters the master bedroom. As she passes the nightstand she notices pictures of a
very happy family, and feeling a bit nostalgic, she decides to abandon her
mission. Feeling warm inside, Alice leaves the room, goes out through the
window, and the ladder, only to be greeting by the Unity Police.

Embezzlement: Unlawful taking

By one to whom property is entrusted
Fraudulent Intent

Forgery: false writing with intent to defraud

Max wrote a letter to the principal which indicated he should be dismissed

at llam for a dentist appointment. He signed his mother' s name to the
letter. At llarn he left school with his friends to go to the beach. Forgery?
Same facts as above except: At 11am he left school and drove to the
dentist. Forgery?

Receiving Stolen Property: Property must be received

Must be stolen
Recipient knows propeny is stolen

May sees an unmarked truck on the side of the road with a big ''Sale" sign
in front of it. When she stops, a gentleman shows her bins of designer
handbags that usually cost over $1 000 each. He is selling them today for
$50 each. May is delighted and buys five bags. As she drives away, the
police arrest her.

Marty puts the word out that he needs a new computer. His buddy, Roy
says he knows where he can get a really good deal, and Marty says he ' s in.
One week later, Roy delivers a new laptop worth over $3000. Mru1y is
delighted, pays Roy the money, and is arrested as Roy drives off in his
Porche.

Identity Theft:

Unauthorized Use of a Vehicle: intends to take vehicle

Qoyriding) - not permanent
If intent is to steal vehicle= larceny or carjacking

COMPUTER CRIME
Any violation of criminal law that involves the use of computer
technology to com..tiUt a prohibited act
Includes spreading harmful v irus'
Password theft
On-line obscenity

DEFENSES:
Alibi
Justifiable Act
Lack of Capacity:
Infancy

Mental Incapacity:

Intoxication (involuntary)

Under the influence Sal drives onto the sidewalk

killing a pedestrian. Sars defense:
Sal is ignorant of intoxicating effect of a drug he is prescribed,
Once his ignorance is proven, he is deemed involuntarily
intoxicated- a complete defense -NOT GUlLTY
How can voluntary intoxication be a defense to an intentional
crime?

Insanity

Duress- never a defense for manslaughter

the seriousness of the crime must correlate to the
seriousness ofthe duress
Necessity (not a defense for homicide)
Mistake of Law: Public servant, whose job is to interprete the laws, gives
incorrect rule of law: Building inspector tells owner that safety standards are met.

/flO

NO DEFENSE:

Ignorance ofthe Law- "I didn' t know it was against the law!'-

SelfDefense: Deadly force can only be used to repel deadly force

Non-deadly force repelled with non-deadly force

Defense of Others: Anyone can come to the aid of another when he is in danger
of victimization of a felony.
Entrapment: Entrapment occurs when law enforcement officials implant the
seed of a criminal act into an otherwise innocent mind.

Let tlte jury decide

Truth is Stranger Than Fiction;

In 1978, Dan White, a former San Francisco city
supervisor who had recently resigned his position,
entered San Francisco City Hall through a basement
window, went upstairs, and shot and killed Mayor
George Moscone and Supervisor Harvey Milk.
Psychiatrist Martin Blinder testified in court that White
had been depressed, which led to eating junk food:
Twinkles and Coca Cola. This further deepened White's
depression, since he was an ex-athlete and know that
the food was not good for him. This was evidence of his
depression that prompted his murder spree. This celebrated
diagnosis became known as '"The Twink.ie Defense."
White's depression was used to establish grounds for a
successful diminished capacity plea; and therefore White was
judged incapable of the premeditation required for a murder
conviction.
Dan White was convicted of the lesser charge of voluntary
manslaughter and sentenced to seven years in prison.
(www .ohnonews.com/twinkie.html)

/12/

Handout1
Cultural Difference: A Defense?
Directions: Read each of the following cases and t he use culture as a possible defenses. Then,
identify three arguments for, and three arguments against, allowing culture to be taken into
account for acts committed in the United States.
Case 1:
Chinese immigrant Dong Lu Chen was convicted of manslaughter and given five years on
probation for killing his wife. He had picked up a hammer and hit his wife eight times, leaving
her to die in her bed . Chen, 51, who left China two years before, claimed a "cultural defense."
He said that a person raised outside the United States should not be held fully responsible for
conduct which, while illegal in the U.S., might be acceptable in the home country.

Chen had killed his wife in their apartment because she had been unfaithful. At his trial in New
York, his lawyer argued that traditional Chinese notions about the shame of adultery had
propelled him to violence. At sentencing, the judge agreed .
Case 2:
In California, Fumlko Kimura, who had come from Japan 14 years earlier as a young adult, tried
to drown herself and her two children after learning of her husband's affair. She survived, but
the children did not. She was charged with murder, but 4,000 local Asians signed a petition
pointing out that in Japan, the ancient rite of "oyako-sh inju" (parent-child suicide) is not

considered murder. In the end, she plead guilty to manslaughter and got probation .
Case 3:

California, Tou Moua, a refugee member of the Hmong mountain tribe of Laos killed
Wife, Yeg Yang for having an affair. He was convicted of manslaughter. His lawyer
sa1d was no prov1s1on for divorce under Hmong custom and that a Hmong husband was
to "execute justice'' in such circumstances, as one t;aditional option . He got eight years

10

Jail.

Case 4:

A 23 -year-old African male Immigrant to the United States faced a rape charge after engaging in
what appeared be forcible sex with an African girl, age 13. But the prosecutor dismissed the
case that u_nder the courtship ritual of "marriage by capture," the young woman
only pretends to be resrstlng. The prosecutor was not completely convinced but decided the
case was too weak for a jury.
'
What are three for, and three arguments against, allowing culture of the home
country to be taken mto account for crimes committed in the United States?

The wedding was traditional and followed millennia-old Islamic

practices (Ann in and Hamilton 1996). A 39-year-old Iraqi immigrant
had arranged for his two eldest daughters, ages 13 and 14, to marry
two fellow Iraqi immigrants, ages 28 and 34. A Muslim cleric flew in
from Ohio to perform the ceremony.
Nebraska went into shock. So did the immigrants. What is marriage
in Iraq is rape in Nebraska. The husbands were charged with rape, the
girls' father with child abuse, and their mother with contributing to the
delinquency of minors.
The event made front-page news in Saudi Arabia, where people
shook their heads in amazement at Americans. Nebraskans shook their
heads in amazement, too.
In Fresno, California, a young Hmong immigrant took a grou p of
friends to a local college campus. There, they picked up the Hmong girl
whom he had selected to be his wife (Sherman 1988; Lacayo 1993}. The
young men brought her to his house, where he had sex with her. The
young woman, however, was not in agreement with this plan.
The Hmong call this zij poj niom, "marriage by captu re." For them,
this is an acceptable form of mate selection, one that mirrors Hrnong
courtship idea ls of strong men and virtuous, resistant women. The
Fresno District Attorney, however, cal led it kidnapping and rape.

FOR YOUR CONSIDERATION

To apply symbolic interoctronism to these real-life dramas, ask how the
perspectives of the people involved explain why they did what they did.
To apply functionalism, ask how the U.S. laws that were violated are
"functional" (that is, what are their benefits, to whom?). To apply conflict theory, ask what groups are in confl ict in these examples. (Do not
focus on the individuals involved, but on the groups to which they
belong.)
Understanding events in terms of different theoretical perspectives
does not tell us what reaction is "right" when cultures clash. Science
can analyze causes and consequences. but it cannot answer questions
of what is "right" or moral. Any "ought" that you feel about these cases
comes from your va lues-which brings us, once aga in. to the initia l issue : the relativity of deviance.

/IJ.3

BATTERED WOMEN WHO KlLL

When women kill- and they do so at astonishingly lower rates than men who commit 85% of all homicides- the
vast majority kill fami ly members, usually men who have battered them for years. As many as 90% of the women in
jail today for killing men had been battered by those men. (Allison Bass, ''Women far less likely to kill than men: no
one sure why,'' The Boston Globe. February 24, 1992, p. 27)
Within motive categories, male offenders dominated in murders motivated by possessiveness (m=82$), abuse
(m=75%), and arguments (m=63%), whereas females were the vast majority of offenders in the category of
self-defense (f=83%). By comparison, among victims whose deaths were motivated by possessiveness temales
comprised 59% and males 41$ of the total. Similarly, among victims killed because of arguments females
represented 56% and males 44$ ofthe total. For victims of abuse, though, females were 75% ofthe total, while
victims of self-defense were 96% male. (from a study of 155 mate homicides in C ity oflacksonville, Florida,
1980-1986). (Christine E. Rasche, '"Given' Reasons for Violence in intimate Relationships, " Homicide: The
Victim/Offender Connection, Anna Wilson (Cincinnati, OH Anderson, 1993) p. 88)
ln Jurik and Winn's study of gender and homicide, 44% (22) of the women said that a precipitating event was partner
conflict compared with 8% (9) of the men. Given this Information, it is not surprising that a significantly grearer
percentage of women who killed stated that they acted in self-defense- 42% of the women versus 10% of the men .
(Nancy Jurik and Russ Winn, "Gender and Homicide: A Comparison of Men and Women Who Kill," Violence and
Victims, Vol. 5, No.4, 1990.p. 236)
A study conducted in Georgia of226 (96%) of the 235 female inmates currently serving for homicide revealed the
presence of domestic violence in more than half of the cases when the woman has killed her significant other, there
is some record of a history of domestic abuse. In 60% of the cases where a woman killed her significant other, the
woman claims the victim assaulted or abused her at the time of the crime. (Judith Haley, "A Study of Women
Imprisoned for Homicide, " Georgi.a Department ofCorrections, June 1992, p. 16)
According to data release in 1992 by the Georgia Department of Corrections, of the 235 women doing time tor
murder or manslaughter in Georgia, 44% killed a husband or lover. (1.0. Hansen, "Is Justice Taking a Beating?"
The Atlanta Constitution, Apri/26, 1992, Al-A7)
Of these murders, 102 were classified as domestic killings. Forty-six women (almost half) claim that their partners
beat them regularly, and 38 of these 46 had repeatedly reported domestic violence to the police. (Kathleen O'Shea,
"Women on Death Row," Women Prisoners: A Forgotten Population, Bever(v Fletcher, Lynda Dixon Shaver. and
Dreama Moon, eds., (Westport, CT: Praeger, 1993) p. 85)
Currently there are 2,000 battered women in America who are serving prison time for defending their lives against
their batterers, (Sracey Kabat, Remarks from presentation ar Harvard School of Public Health, Center fo r Health
Communication, June 1991)
Women commit 17% of all homicides and a high percentage are committed in big cities such as Houston and
Philadelphia. The fear, rage, and entrapment associated with abuse can lead a woman to strike out against her
assailant for sheer survival. Unfortunately, killing is often a woman's safest alternative given the absence of police
protection or its ineffectiveness due to state laws requiring injury in a "domestic" before an arrest is mandated. (Evan
Stark, "Reihinking Homicide: violence, Race, and the Politics of Gender, '' international Journal of Health and
Services, vo/. 20, No, 1. 1990, p. 18)

J (J'f

Four out of five victims of intimate offender resisted the assault. They passively resisted trying to get help,
threatening or arguing, or using evasive action- twice as often as they actively resisted - using a weapon or fighting
back. (Caroline Bureau ofJustice Statistics, "Female Victims of Violent Crime," Washington, DC: U.S
Department of.Justice, 1991, p. 6)
In a studv of 155 mate homicides in City of Jacksonville, Florida, 1980-I 986, at least seven ofrhe 24 offenders who
claimed ihat their actions were iJl self-defense were prosecuted by the state, and six of them were found guilty (one
was fou nd not glulty by reason of insanity). (Christine E. Rasche, '"Given' Reasons for Violence in 1nrimate
Relationships," Homicide . The Victim/Of!fmder Connection, ed. Anna Wilson (Cincinnali, OH: Anderson, 1993} p.
X8)

Among mate homicides motivated by possessiveness, there were about equal numbers of cases with verbal versus
physical provocation, but for 58% of these cases there was no victim provocation at all. The absence of provocation
was notable also for cases motivated by abuse (67% of which were unprovoked) and other reasons (68%
unprovoked). For cases motivated by arguments, however, 44% involved physical or other provocation and another
25% had verbal provocations. Not surprisingly, for homicides motivated by self-defense, 71% entailed physical
provocations by the victim, wjth another 25% having verbal provocations (including threats to kill). Only 4% of
claimed self-defense cases involved no apparent provocation at aU. (from a study of 155 mate homicitles in City of
Jacksonville, Florida, I 980- I 986) (Christine E. Rasche, "'Given' Reasons for Violence in Intimate Relationships,"
Homicide: The Victim/Offender Connection, ed. Anna Wilson (Cincinnati, OH: Anderson, 1993) p, 95)

In a study of 155 mate homicides in City of Jacksonville, florida, 1980-1986, over half (56%) of these offenders
either called the police themselves, confessed to the police, or both. Offenders who killed their victims in
self-defense were the most likely to come forward (86%)), followed by those who killed as a result of abuse (75%),
argument (66%), orfor other reasons (61%). (Christine E. Rasche, "t(;iven' Reasonsfor Violence in Intimate
Relationships," Homicide: The Victim/ Offender Connection, ed. Anna Wilson (Cincinnati, OH: Anderson, 1993) p
898)

Although women comprise more than halfofthe U.S. population and 23% of all homicide victims, they committed
only 14.7% of the homicides reported during the study (male/female ratio= 6.33).ln contrast to men, who killed
non intimate acquaintances, strangers, or individuals of undetermined relationship in roughty 80% of cases, women
killed their spouse in 31.4% of cases, an intimate acquaintance in 13.6% or a member of their family in 14.8% of
cases. (Arthur Kellerman, "Men, Women and Murder,'' The Journal ofTrauma, July 17, 1992, p. 2)
Most of the women in prison for homicide had only one victim (95%). Tbe 226 women killed 239 victims, generally
their male significant other ( 117). Fifty;-lhree percent of the women killed their significant other. The significant
other category comprises legal spouse, common-law spouse, lover and ex-spouse/lover. When the women killed a
significant other, they generally admitted committing the crime (82%). (.Judith Haley, "A Study of Women
fmprisoned.for Homicide," Georgia Department ofCorrections, June 1992. p. 15)
[n 1992, the Amedcan Medical Association reported that as many as I in 3 women wi ll be assaulted b:y a domestic
parttler in her lifetime- 4 million in any given year. (''When Violence Hits Home," Time, July 4, 1994)

The average prison sentence of men who kill their women partners is 2 to 6 years. Women who kill their partners are
sentenced on average to 15 years, despite the fact that most women who kill do so in self-defense (National
Coalition Against Domestic Violence, 1989).

Jn two studies ofhomjcide cases involving women who killed their partners, 75% and 44% of the women had been
physically abused by them prior to the lethal incident. [Daniel and Harris ( 1982) in a pretrial study of women
charged with homicide in Missouri] (Angela Browne and Kirk R. Williams, "Exploring the Effect of Resource
Availability and the Likelihood of Female-Perpetrated Homicides," Law & Society Review, Vol. 23, No. 1, I 989,
p.77), [ln a study compari ng the links between gender and homicide, 108 cases using data from court recorded
presentence investigative resources were analyzed.] (Nancy Jurik and Russ Winn, "Gender and Homicide : A
Comparison of Men and Women Who Kill,

11

Voices and Victims, Vol. 5, No. 4, 1990, p. 234).

THE FIFTH AMENDMENT

AND THE
FOURTEENTH AMENDMENT

FIFTH AMENDMENT

No person shall be held to answer for a

capital, or otherwise infamous crime,
unless on a presentment or indictment of
a Grand Jury, except in cases arising in
the land or naval forces, or in the Militia,
when in actual service in time of War or
public danger; nor shall any person be
subject for the same offense to be twice
put in jeopardy of life or limb; nor shall
be compelled in any criminal case to be a
witness against himself, nor be deprived
of life, liberty, or property, without due
process of law; nor shall private property
be taken for public use, without just
compensation.

DUE PROCESS CLAUSES- FIFTH AND FOURTEENTH AMENDMENTS

Fifth Amendment: limits the power of the national government over an individual
Fourteenth Amendment: limits the power of the states over an individual
Both guaranty that no person shall be deprived ''of life, liberty, or
property, without the due process oflaw."

Two Types of One Process:

1. Procedural Due Process- when the government acts to deprive a
person oflife, liberty, or property, it must do so in accord with
procedures deemed to be fair. (Procedures oflaw enforcement)
a. Given Notice of the deprivation and
b. Given the opportunity to be beard before deprivation occurs
2. Substantive Due Process - The substance of the Jaw must not be
unfair or unreasonable. Substantive Due Process protects "life, liberty,
and property" from unfair proceedings.
E.g.: A state Jaw provides that anyone suffering from AIDS shall be
incarcerated in a special state facility until he is cured or dies. No one
shall be incarcerated until after there bas first been a full judicial
determination that the person is indeed suffering from AIDS. The person
is also entitled to a trial-type hearing with appointed counsel.
this

law constitutjonul? What ate the arguments/or both sides?

Two Tests to Measure Substantive Due Process:

Strict Scrutiny (if a fundamental liberty interest being infringed)
a. is the law the LEAST BURDENSOME means of achieving a
COMPELLING government interest?
Rational Basis Test (if non-fundamental or property interest is involved)
a. is there ANY legitimate goal that a rntional legislatwe might
have thought the law would further?
(And, of course the Court may use variations)

1<17

Substantive Due Process

Protected Interests

Right to marry
Right of Privacy and Personal Autonomy
Right to Travel Freely within the country
Freedom from Physical Restraint
Right to Life
Right to Own Property

(A "special relationship" with the government may negate these interests)

For Example: - -- - - - - - - - - - -- -

Cases to consider: Cruzan v. Missouri DepL ofHealth, 497 U.S. 261(1990)

Issue:
Conclusion:

Wasllington v. Gluckberg, 117 S.CL 2258 (1997)

Issue:
Conclusion:

Rbe v. Wade 410 U$.113, 156-158 (1973)

Issue:
Conclusion:

Scenario: A state law prohibits doctors from performing more than one abortion per
month; any doctor who violates this statute is barred from the further practicing of
medicine. Dr. Mary Jones was recently notified by the state that her medical license has
been revoked because she performed two abortions last March.. How might Dr. Jones
challenge the validity of the states action? Analyze both Substantive and Procedural Due
Process.

/02

..., 111J''

e..1TJ.. .J.-. l.'

1
' -




p
- .lJLJ .

- .t..
. . . - ._. - .
--
- .. . - filii"

....._.

--:.---

..... . ...

PROBLEM 42.6

Roe v. Wade
Supteme Court of the United States
410 u.s. 113 (1973)

8 JuSTICE BLAcKMUN delivered the opinion of the Court.19

One's philosophy, one's experiences, one's exposure to the raw edges of
human existence, one's religious training, one's attitudes toward life and family
and their values, and the moral standards one establishes and seeks to observe,
are all likely to influence and to color one's th.i.nki.ng and conclusions about
abortion. In addition, population growth, pollution, poverty, and racial
,tones tend to complicate and not to simplify the problem ... .

Jane Roe, a single woman .. . sought a declaratory judgment that the

Texas criminal abortion statutes were unconstitutional on their face, and an
il\iunction restraining the defendant from enforcing the statutes. Roe alleged
) that she was unmarried and pregnant; that she wished to terminate her
19. Justices Burger, Douglas, Brennan,
Stewart, Marshall, and Powell JOined the
. Court's opinion; Justices Burger, Douglas,

and Stewart filed concurring opinions. Jus

tices White and Rehnquist dissented.

l/0

pregnancy by an abortion "performed by a competent, licensed pbysici'BD under

safe, clinical conditions"; that she was unable to get a "legal" abortion in Texas
because her life did not appear to be threatened by the continuation of her
pregnancy; and that she could not afford to travel to another jurisdiction in
order to secure a legal abortion under safe conditions. She claimed that the
Texas statutes . . . abridged her right of privaf, protected by the
Fourth, Fifth, Ninth, and Fourteenth Amendments . ... (She] purported
to sue "on behalf of herself and all other women" si.iD.ilarly situated .. ..
"
The Constitution does not mention any right of privacy. In a line
decisions, however, going back perhaps as far as [1891), the Court bas
recognized that a right of personal privacy, or a guarantee of certain areas or
zones of privacy, does exist under the Constitution . . . . [Our} decisions make it'
clear that only personal rights that can be deemed " f11llQamenta!" or "imglicit.
in the concept ,of ordered llbehx," y Connecticut, 302 U.S. 319, 325
(1937) , are included in this gl,!arantee of personal privacy. They also make it
clear that the right has extension to flCtivttles te1ating to marriage,'
Loving v. Virginia, 388 U.S. 1, 12 (1967); procreation, Skinner; contraception,
Eisenstadt v. Baird; family relationships, Prince v. Ma.esachusetts, 321 U.S.
1'58, 166 (1944); and child rearing and education, PMrrce !
268 U.S. 510, 535 (1925), Meyer v. Nebraska, 262 U.S. 390 (1923).
This right to privacy . . . founded in the Fourteenth Amendment's concept
of personal liberty and restrictions on state action, a.s we feel it is, . . . is broad .
enough to encompass a woman's decision whether or not to terminate her
pregnancy. The detriment that the State woU1d unpose upon the pregnant
woman by denying this .choice altogether is apparent. Specific and direct harm
medically diagnosable even in early pregnancy may be involved. Maternity, or
additional off-spring. may force upon the woman a distressful life and future .
Psychological harm may be imminent. Mental and physical health may be taxed
by child care. There is also the distress, for all concerned, associated with the
unwanted child, and there is the problem of bringing a child into a family
already unable, psychologically and otherwise, to care for it ... . (T)be additional difficulties and continuing stigma of unwed motherhood may be involved.. All
these are factors the \1\TOmaD and her responsible physician necessarily will
consider in consultation.
On the basis of elements such as these, appellants and some amici argue
that the woman's right is absolute and that she is entitled to terminate her
pregnancy at whatever time, in whatever way, and for whatever reason she
alone chooses. With this we do not agree. Appellants' arguments that Texas
either has no valid interest at all in regulating the abortion decision, or no
interest strong enough to support any limitation upon the woman's sole
determination, are unpersuasive. The Court's decisions recognizing a right of
privacy also acknowledge that some state regulation in areas protected by that
right is appropriate .. . . [A) state may properly assert important interests in
safeguarding health, in maintaining medical standards, and in protecting
potential life. At some point in pregnancy, these respective interests become
sufficiently compelling to sustain regulation of the factors that govern the
abortion decision. The privacy right involved, therefore, cannot be said to be
absolute .... We therefore conclude that the right of personal privacy includes
the abortion decision, but that this right is not unqualified 8rld must be
considered against important state interests in regulation ....
Where certain ''fundamental rights" are involved, the Court bas held that.
regulation limiting these rights may be justified only by a "compelling state -.
interest" .... The appellee and certain amici argue that the fetus is a "person ''
the language and meaning of the Fourteenth Amendment. In support of

II I

this they outline at length and in detail the well-known facts of fetal development. If this suggestion of personhood is established, the appellant's case, of '
course, collapses, for the fetus' right to life is then guaranteed specifically by
the Amendment , , . . The Constitution does not define "person" in so many
words. [Nearly all its uses of the word have application only post-natally. This,
together] with our observation . , . that throughout the major portion of the
19th century prevailing legal abortion practices were far freer than they are
, today, persuades us that the word " persor:_,_" _&!L used in the Fourteenth
\ Amendment, does not include the unborn . , ..
This conclusion, however, does not of itself fully answer the' contentions
raised by Te..'Cas . . . . The pregnant woman cannot be isolated in her privacy.
She carries an embryo and, later, a fetus ... . [l)t is reasonable and appropriate
for a State to decide that at some point in time another interest, that of health
of the mother or that of potential human life, becomes significantly involved.
The woman's privacy is no longer sole and any right of privacy she possesses
must be measured accordingly,

Texas urges that, apart from the Fourteenth Amendment,

.!!:_
conception and is present throughout pregnancy, and that, therefore, the State
-na.sacom:peliiDg interest in protecting that life from and after conception. We
need fiot resolve the difficult quest!?n of when life When those trained
in the respective disciplines of medicine, philosophy, and theology are unable to
arrive at any consensus, the judiciary, at this point in the development of man's
knowledge, is not in a position to speculate as to the answer . ... [ln legal areas
other than criminal abortiOil, perfection
interests in the unborn have
generally been cont]ngent upon live birth.] In short, the unborn have never
recognized in
persons in the whole sense . ...
[W)e do not agree that, by adopting one theory of life, Texas may override
the rights of the pregnant woman that are at stake. We repeat, however, that
the State does have an important and legjtimate interest in preserving and
the health of the pregnant woman . . . and that it has still another
important and legitimate interest in protecting the potentiality of human
life ... _ Each grows in substantiality as the woman approaches term and, at a
point duriiig pregnancy, each becomes "compelling.'' With respect to the
State's important and legitimate interest in the health of the mother, the
" compelling" point, in the light of present medical knowledge, is at approximately the end of the first trimester. This is so because of the now-established
medical fact . . .
until !J?.Et. enJl of first trimester in abortion
may be less than mortality in normal childbirth. It follows that, from and after
this point, a State may regulate the abortion procedure to the extent that the
regulation reasonably relates to the preservation and protection of maternal
health . . . . With respect to the State's important and legitimate interest in
potential life, the "compelling" point is at viability. This is so because the fet-y.s.
1
then presum_abb _h.as...the. of meaningflll tlifeoutsl'de the
S
womb .... If the State is inin protecting fe-tSJ life after ,;ability, it may
go so far as to .P.rosfribe abortion except_when it is
life or of Texas statute cannot survive
by these standards.]

--c;r-

mother

RPt'

if,

0 9 73)

The central court decision that created current abortion law in the U.S. is Roe v.
Wade. 1 In this 1973 decision, the Supreme Court ruled that women had a
constitutional right to abortion, and that this right was based on an tmplied right
to p!:!rsonal pnvacy emanating from the Ninth and Fourteenth Amendments 2
In Roe v Wade the Court said that a fetus is not a persnn but "potential life",
and thus does not have constitutional rights of its ovm.3 i he Court also set up
1:1 framework in which the woma11's right to abortion and the state's right to
protect potential life shift: dunng the first trimester of pregnancy, a woman's
privacy right is strongest and the state may not regulate abortion for any
reason; during the second t1imester, tne state may reguiate abortion only to
protect the health of the woman; during the third trimester, the state may
regulate or prohibit abortion to promote its interest tn the potential life of tile
fetus, except where abortion is necessary to preserve th e woman's life or
health.4

Doe v. Solton (1973)

Roe v. Wade was modified by another case decided the same day, Doe v.
Bolton .5 1n Doe v. Bolton the Court ruled that a woman's right to an abortion
could not be limited by the state if abortion was sought for reasons of maternal
health The Court defined health as ''all factors- physical, emotional ,
psychological, familial , and the woman's age- relevant to the well-being of the
patient.''6 This health exception expanded the right to abortion for any reason
through all three trimesters of pregnancy.

tJionned Parenthood v. Casey ( i991)

The law on abortion was further clarified in Planned Parenthood v. Casey .1 In
this 1992 case the Court said states could regulate abortion to require parental
involvement when minors were involved, require a waiting period between
seeking and obtaining an abortion, and require doctors to provide detailed
medical information before obtaining consent for the abortion. The Doe v.
Bolton health exception to abortion restrictions throughout pregnancy was not
altered.

StenbErg v-. Carhart (2000)

In 2000 the Supreme Court again ruled on abortion in Stenberg v. Carhart 8
Here the Court said that a state could not prohibit the late-term abortion
procedure called partial birth abortion.

Notes

1.
2

3.

Roo v. WBdo. 410 U.S. 113, 162 (1 973).

"Tha Constitution does not explicitly mention any right of pnvacy; bul the Coun has found 'at
least the roots of that right" In the First, Fourth. Frfth. Ninth, and Fourteenth Amendments, and in
the penumbras of the Bill of Rights , Roe v. Wede. 410 U.S. at 129.
Roe v. Wede. 410 U.S. 113, 151 . "If this suggestion of personhood Is established, the appellant's
case, of course, collapses, for the fetus' right to life would than be guaranteed speciftcally." fd. at

/13

SECTION 1. SHORT TITLE.

This Act may be cited as the 'Unborn Victims of Violence Act of2004' or ' Laci
and Conner's Law'.

CHAPTER 90A-PROTECTION OF UNBORN CHILDREN

' (a)(l) Whoever engages in conduct that violates any of the provisions oflaw
listed in subsection (b) and thereby causes the death of, or bodily injury (as
defined in section 1365) to, a child, who is in utero at the time the conduct takes
place, is guilty of a separate offense under this section.
(2)(A) Except as otherwise provided in this paragraph, the punishment for that
separate offense is the same as the punishment provided under Federal Jaw for
that conduct had that injury or death occurred to the unborn child's mother.
' (B) An offense under this section does not require proof that-, (i) the person engaging in the conduct had knowledge or should have had
knowledge that the victim of the underlying offense was pregnant; or
' (ii) the defendant intended to cause the death of, or bodily injury to, the
unborn child.
' (C) If the person engaging in the conduct thereby intentionally kills or attempts
to kill the unborn child, that person shall instead ofbeing punished under
subparagraph (A), be punished as provided under sections 1111, 1112, and 1113
of this title for intentionally killing or attempting to kill a human being.
' (D) Notwithstanding any other provision of law, the death penalty shall not be
imposed for an offense under this section.
' (b) The provisions referred to in subsection (a) are the following:
' (1) Sections 36, 37, 43 , 111, 112, 113 , 114, 115, 229, 242, 245, 247, 248,
351, 831 , 844(d), (f), (h)(J),
(c) Nothing in this section shall be construed to permit the prosecution'(1) of any person for conduct relating to an abortion for which the
consent of the pregnant woman, or a person authorized by law to act on
her behalf, has been obtained or for which such consent is implied by law;
'(2) of any person for any medical treatment of the pregnant woman or her
unborn child; or
(3) of any woman with respect to her unborn child.

(d) As used in this section, the term 'unborn child' means a child in utero, and the
t erm ' child in utero' or ' child, who is in utero' means a member ofthe species
homo sapiens, at any stage of development, who is carried in the womb.1

I I t/

Analyzing Procedural Due Process Problems:

I. Is a protected interest in life, liberty, or property
threatened by government action?

2. Is the restriction of the protected interest sufficient to

trigger the application of procedural due process?
3. Has there been adequate notice and opportunity for
hearing? (types of hearings vary-''it depends").

What is Libertv: freedom of speech, right to privacy, liberty to contract, liberty to

pursue a trade, etc.
What is Propertv: real estate, wages, personal property, gov't benefits

.. . .. ___ . - , of right must be significant enough to trigger

procedural due process

THE EQUAL PROTECTION CLAUSE

Of the Fifth and Fourteenth Amendment

''No state slta/L deny to a11y person wit/1in its j11risdiction the equal
protectioll oftl1e laws. "
(Non-discrimination)

To analyze equal protection problems:

1. What type of discrimination is involved?
2. If the discrimination is one that calls for heightened scrutiny, bas the
plaintiff established a clear case that the defendant has not been able to
rebut?
3. Has the -defender of the law justified the discrimination under the
applicable standard of review?
(Of course, the Court addresses these questions with flexibility)

DUE PROCESS HYPOTHETICAL PROBLEMS:

1. Chuck was hired as a summer law clerk in the State Attorney General's Office. He
expected to work dwing June, July, and August, but on July 2, Chuck was fired. When he
asked why, his boss told him that he could not divulge the reason. Was Chuck entitled to
notice of the reasons for his firing and an opportunity to be heard?

2.) In a public high school in Ohio there was widespread student tmrest. Students who
either participated in, or were present at, demonstrations held on school property were
suspended. Many suspensions were for a period of ten days. Students were not given a
hearing before suspension, aUhough at a later date some students and their parents were
given informal conferences with the principal. Ohio law provides free education to all
children between the ages of 6 and 21 . A number of students, through their parents, sued
the board of education, claiming that their right to due process bad been violated when
they were suspended without a hearing. (Goss v. Lopez).

What rights were violated?

What will the court decide. Why?
Suppose a student at that same high school was suspended for ten days for bringing a gun
to school. He is suspended without notice or a hearing.

What rights of the student are violated?

What will the court decide. Why?
HYPOTHETICAL EQUAL PROTECTIONS PROBLEMS:

The following situations all involve some form ofdiscrimination. Decide whetl1er tire
discrimination is reasonabk or should be prohibiJ.ed. Should the 11ction be evaluated
under Strict Scrutiny or using tlte llaJional Bnsis TesL What wiU the court decide.
Wily?
a

An airline requires pilots to retire at age 60.

b. A business refuses to hire a man with good computer skills for a secretary's
position.

c. A child with a physical disability is not allowed to play at a public playground.

FOURTEENTH AMENDMENT
Section 1. All persons born or
naturalized in the United States, and
subject to the jurisdiction thereof, are
citizens of the United States and of the
State wherein they reside. No State shall
make or enforce any law which shall
abridge the privileges or immunities of
citizens of the United States; nor shall
any State deprive any person of life,
liberty, or property, without due process
of law; nor deny to any person within its
jurisdiction the equal protection of the
laws.

Plessy v. Ferguson
Supreme Court of the United States
163 u.s. 537 (1896)

(for] the court.

This case turns upon the constitutionality 'Of an act of the General
Assembly of the State of Louisiana, passed in 1890, providing for separate
railway carriages for the white and colored races. Acts 1890, No. 111, p.
152 .... [The act provided] that all railway companies carrying passengers in
their coaches in this State, shall provide equal but separate accommodations for
the white, and colored races, by providing two or more passenger coaches for
each passenger train, or by dividing the passenger coaches by a partition so as
to secure .separate accommodations that persons may only occupy seats as
signed, to them on account of the race they belong to [; that officers may and
must assign passengers by race; that violators can be fined or imprisoned; and
that) nothing in this act shall be construed as applying to nurses attending
children of the other race.
lPlessy was) assigned by officers of the company to the coach used for the
race to which he belonged, but he insisted upon going into a coach used by the
race to which he did not belong. Neither in the information nor plea was his
particular race or color averred. 18 The petition for the writ of prohibition
averred that petitioner was seven eighths Caucasian and one eighth African
blood; that the mixture of colored blood was not discernible in him, and that he
was entitled to every right, privilege and immunity secured to citizens of the
United States of the white race; and that, upon such theory, he took possession
of a vacant seat in a coach where passengers of the white race were accommoand was ordered by the conductor to vacate said coach and take a seat in
another assigned to persons of the colored race, and having refused to comply
with such demand he was forcibly ejected with the aid of a police officer, and
imprisoned in the parish jail to answer a charge of having violated the above
act . . ..
It was intimated . , . that [the thirteenth] amendment was regarded by the
statesmen of that day as insufficient to protect the colored race from certain
laws which had been enacted in the Southern states, imposing upon [them]
onerous disabilities and burdens, and curtailing their rights in the pursuit of
life, liberty and property to such an extent that their freedom was of little
JusTlC.E BROWN

16. Plessy, according to the Cow-t's fa.otual statement, "declined and refused, either
by pleading or otherwise, t.o ad.xnit that he

was in 8IlY sense or in any proportion a

colored man." Plessy, 163 U.S. at 539-40.

I

value; and that the Fourteenth Amendment was devised to meet this exigency .. . .

A statute which implies merely a legal distinction between the white and
colored races-a distinction which is founded in the color of the two races, and
which must always exist so long as white men are llistinguished from the other
race by color-has no tendency to destroy the legal equality of the two races, or
reestablish a state of involuntary servitude . . . . The object of the [Fourteenth]
amendment was undoubtedly to enforce the absolute equality of the two races
before the law, but in the nature of things it could not have been intended to
abolish distinctions based upon color, or to enforce social, as distinguished from
political equality, or a commingling of the two races upon terms unsatisfactory
to either. Laws permitting, and even requiring, their separation in places where
they are liable to be brought into contact do not necessarily imply the
inferiority of either race to the other . ...
One of the earliest of these cases is that of Roberts v. City of Boston, 5
Cush, 198 [which established separate schools by race] . . . . "The great principle," said Chief Justice Shaw .. . "advanced by the learned and eloquent
advocate for the plaintiff," (Mr. Charles Sumner,) "is, that by the constitution
and laws of Massachusetts, all persons, without distinction of age or sex, birth
or color, origin or condition, are equal before the law .. . . But, when this great
principle comes to be applied to the actual and various conditions of persons in
society, it will not warrant the assertion, that men and women are legally
clothed with the same civil and political powers, and that children and adults
are legally to have the same functions and be subject to the same treatment;
but only that the rights of all, as they are settled and regulated by law, are
equally entitled to the paternal consideration and protection of the law for their
maintenance and security." . ..

All that we can consider is, whether the State has the power to require that
railroad trains within her limits shall have separate accommodations for the
two races . . .. While we think the enforced separation of the races, as applied to
the internal commerce of the State [does not deny] t he equal protection of the
laws, within the meaning of the Fourteenth-Amendment, we are not prepared
to say that the conductor, in assigning passengers to the coaches according to
their race, does not act at his peril . . . . The power to assign to a particular
coach obviously-unplies .. , the power to determine who, under the laws of the
particular State, is to be deemed a white, and who a colored person. . . . [This
question does not arise on this record.]

It is claimed by the plaintiff in error that, in any mixed community, the

1eputation of belonging to the dominant race, in this instance the white race, is
property, in the same sense that a right of action, or of inheritance, is property.
Conceding this to be so, for the purposes of this case, we are unable to see how
this statute deprives him of, or in any way affects his right to, such property. If
he be a white man and assigned to a colored coach, he may have his act ion for
damages against the company for being deprived of his so called property. Upon
the other hand, if he be a colored man, and be so assigned, he has been
deprived of no property, since he is not lawfully entitled to the reputation of
being a wblte man . . ..
[The question in this case is] whether the statute of Louisiana is a
reasonable regulation ... . In determining the question of reasonableness [the
legislature] is at liberty to act with reference to the established usages, customs
and traditions of the people, and with a view to the promotion of their comfort,
and the preservation of the public. peace and good order. Gauged by this
standard, we cannot say that a law which authorizes or even requires the

II

colored races--a distinction wtuch lS lbunclec1 m tbe co1or ot the two races, ana
wltich must always eldst so long as white men are distinguished from the other
race by color-has no tendency to destroy the legal equality of the two races, or
reestablish a state of involuntary servitude . . . . The object of the [Fourteenth]
amendment was undoubtedly to enforce the absolute equality of the two races
before the law, but in the nature of things it could not have been intended to
abolish based upon color, or to enforce social, as distinguished from
political equality, or a commingling of the two races upon terms unsatisfactory
to either. Laws permitting, and even requiring, their separation in places where
they are liable to be brought into contact do not necessarily imply the
inferiority of either race to the other . . .
One of the earliest of these cases is that of Roberts v. City of Boston, 5
"The great princiCush. 198 [which established separate schools by race) .
ple," said Chief Justice Shaw . .. "advanced by the learned and eloquent
advocate for the plaintiff," (Mr. Charles Sumner,) "is, that by the constitution
and Jaws of Massachusetts, all persons, without distinction of age or sex, birth
or color, origin or condition, are equal before the law . . . . But, when this great
principle comes to be applied to the actual and various conditions of persons in
society, it will not warrant the assertion, that men and women are legally
clothed with the same civil and political powers, and that children and adults
are legally to have the same functions and be subject to the same treatment;
but only that the rights of all, as they are settled and regulated by law, are
equally entitled to the paternal consideration and protection of the law for their
maintenance and security." . . .
All that we can consider is, whether the State has the power to require that
railroad trains within her limits shall have separate accommodations for the
two races . . . While we think the enforced separation of the races, as applied to
the internal commerce of the State [does not deny) the equal protection of the
laws, within the meaning of the Fourteenth Amendment, we are not prepared
to say that the conductor, in assigning passengers to the coaches according to
their race, does not act at his peril . . . . The power to assign to a particular
coach obviously implies .. . the power to detennine who, under the laws of the
particular State, is to be deemed a white, and who a colored person .. .. (This
question does not arise on this record.J
It is claimed by the plaintiff in eiTor that, in any mixed community, the
reputation of belonging to the dominant race, in this instance the white race, is
property, in the same sense that a right of action, or of inheritance, is property.
Conceding this to be so, for the purposes of this case, we are unable to see how
this statute deprives him of, or in any way affects his right to, such pr-operty. If
he be a white man and assigned to a colored coach, he may have his action for
damages against the company for being deprived of his so called property. Upon
the other hand, if he be a colored man, and be so assigned, he has been
deprived of no property, since he is not lawfully entitled to the reputation of
being a white man ... .

(The question in this case is] whether the statute of Louisiana is a

reasonable regulation . . . . In determining the question of reasonableness [the
legislaturej is at liberty to act with reference to the established usages, customs
and traditions of the people, and with a view to the promotion of their comfort.,
and the preservation of the public peace and good order. Gauged by this
standard, we cannot say that a law which authorizes or even requires the

/20

separation of the two races in public conveyances is unreasonable, or

obnoxious to the Fourteenth Amendment .. ..
We consider the underlying fallacy of the plaintiff's argument to consist in
the assumption that the enforced separation of the two races stamps the
colored race with a badge of inferiority, If this so, it is not by reason of
anything found in the act, but solely because the colored race chooses to put
that construction upon it. The argument necessarily assumes that if, as has
been more than once the case, and is not unlikely to be so again, the colored
race should become the dominant power in the state legislature, and should
enact a law in precisely similar terms, it would thereby relegate the white race
to an inferior position. We imagine that the white race, at least, would not
acqwesce in this assumption. The argument also assumes that social prejudices
may be overcome by legislation, and that equal rights cannot be secured to the
negro except by an enforced commingling of the two races. We cannot accept
this proposition. If the two races are to meet upon terms of social equality, it
must be the result of natural affinities a mutual appreciation of each other's
merits and a voluntary consent of individuals . . . . Legislation is powerless to
eradicate racial instincts or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties
of the present situation. If the civil and political rights of both races be equal
one cannot be inferior to the other civilly or politically. If one race be inferior to
the other socially, the Constitution of the United States cannot put them upon
the same plane .. , .
The judgment of the court below is, therefore, Affirmed.
JuS'riCE HARLAN dissenting.
It was said in argument that the statute of Louisiana does not discriminate
against either race, but prescribes a rule applicable alike to white and colored
citizens . ... Every one knows that the statute in question had its origin in the
purpose, not so much to exclude white persons from railroad cars occupied by
blacks, as to e.xclude colored people from coaches occupied by or assigned to
white persons . ... The thing to accomplish was, under the guise of giving equal
accommodation for whites and blacks, to compel the latter to keep to themselves while travelling in railroad passenger coaches. No one would be so
wanting in candor as to assert the contrary .. . .
The white race deems itself to be the dominant race in this country. And so
it is, in prestige, in achievements, in education, in wealth and in power. So, I
doubt not, it will continue to be for all time, if it remains true to its great
heritage and holds fast to the principles of constitutional liberty. But in view of
the Constitution, in the eye of the law, there is in this country no superior,
dominant, ruling class of citizens. There is no caste here. Our Constitution is
color-blind, and neither knows nor tolerates classes among citizens, In respect
of civil rights, all citizens are equal before the law. The humblest .iB the peer of
the most powerful The law regards man as man, and takes no account of his
surroundings or of his color when his civil rights as guaranteed by the supreme
law of the land are involved. It is, therefore, to be regretted that this high
tribunal . . . has reached the conclusion that it is competent for a State to
regulate the enjoyment by citizens of their civil rights solely upon the basis of
race.
In my opinion, the judgment this day rendered '\'\rill, in time, prove to be
quite as pernicious as the decision made by this tribunal in the Dred Scott case.
It was a<ljudged in that case that the descendants of Africans who were
imported into this country and sold as slaves were not included nor intended to
be included under the word "citizens" in th_e Constitution .... [lt was decided)
that at the time of the adoption of the Constitution they were ''considered a:s a
\

12 1

suooramate ana Jntenor class ot bemgs, who had been subjugated by the
dominant race, and, whether emancipated or not, yet remain,ed subject to their
authority, and had no rights or privileges but such as those .,;ho held the power
and the government might choose to grant them." 19 How. 393, 404. The
recent amendments of the Constitution, it was supposed, had eradicated these
principles from our institutions. But it seems that we have yet, in some of the
States, a dominant race-a superior class of citizens, which assumes to regulate
the enjoyment of civil rights . . . upon the basis of race.
Sixty millions of whites are in no danger from the presence here of eight
millions of blacks. The destinies of the two races, in this country, are indissolubly linked together, and the interests of both require that the common
government of all shall not permit the seeds of race hate to be planted under
the sanction of law. What can more certainly arouse race hate, what more
certainly create and perpetuate a feeling of distrust between these races, than
state enactments, which, in fact, proceed on the ground that colored citizens
are so inferior and degraded that they cannot be allowed to sit in public coaches
occupied by white citizens? That, as all will admit, is the real meaning of such
legislation as was enacted in Louisiana . ...
[As to] the suggestion t hat social equality cannot exist between the white
and black races in this country(, t]hat argument, if it can be properly regarded
as one, is scarcely worthy of consideration; for social equality no more exists
between two races when travelling in a passenger coach or a public highway
than when members of the same races sit by each other in a street or in the
jury box .. ..
There is a race so different from our own that we do not permit those
belonging to it to become citizens of the United States. Persons belonging to it
are, with few exceptions, absolutely excluded from our country. I allude to the
Chinese race. But by the statute in question, a Chinaman can ride in the same
passenger coach with white citizens of the United States, while citizens of the
black race in Louisiana, many of whom, perhaps, risked their lives for the
preservation of the Union, who are entitled, by law, to participate in the
political control of the state and nation . . . and who have all the legal rights
that belong to white citizens, are yet declared to be criminals, liable to
imprisonment, if they ride in a public coach occupied by citizens of the white
race .. ..
The arbitrary separation of citizens, on the basis of race, while they are on
a public highway, is a badge of servitude wholly inconsistent with the civil
freedom and the equality before the law established by the Constitution. It
cannot be justified upon any legal grounds.
If evils will result from the commingling of the two races upon public
highways established for the benefit of all, they will be infinitely less than those
that will surely come from state legislation regulating the enjoyment of civil
rights upon the basis of race. We boast of the freedom enjoyed by our people
above all other peoples. But it is difficult to reconcile that boast with a state of
the law which, practically, puts the brand of servitude .and degradation up_on a
large class of our fellow citizens, our equals before the law. The thin disguise of
"equal" accommodations for passengers in railroad coaches will not mislead
any one, nor atone for the wrong this day done ....
I do not deem it necessary to review the decisions of state courts ... . Some,
and the most important, of them are wholly inapplicable, because rendered
prior to the adoption of the last amendments of the Constitution, when colored
people had very few rights which the dominant race felt obliged to respect.
Others were made at a time when public opinion, in many localities, was
dominated by the institution of slavery; when it would not have been safe to do
justice to the black man; and when, so far as the rights of blacks were
concerned, race prejudice was, ptactically, the supreme law of the land. Those
decisions cannot be guides in the era introduced by the recent amendments of
the supreme law, which established universal civil freedom, gave citizenship to
all born or naturalized in the United States and residing here, obliterated the
race line from our systems of governments, National and State, and placed our
free institutions upon the b1oad and sure foundation of the equality of all men
before the law . , ..

J22.

Ask Yourself: "'Is the lilw discriminating?,

if so, in what way?

a. Facially? In the text ofthe law itself

b. By Design? Designed to cause discrimination, but not obvious in text

c. By Application? The effect of the law, when applied, is discriminating

More Fundamental Rights:
a. Right to Vote

b. Right to Travel
c. Access to Public Education

Suspect Classifications:
a Race

b. national origin
c. gender or legitimacy

d. handicap
e. age

f. sexual orientation
(and more. ....)

If a law discriminates against a suspect class of persons, apply STRICT SCRUTINY to

determine whether or not the law is constitutional:
Strict Scrutiny: Is the Jaw addressing a COl\1.PELLJNG STATE INTEREST and
NARROWLY TAILORED (as as possible)

If a law affects classes of persons not suspect or quaisi-suspect, apply RATIONAL

BASIS of scrutiny to determine whether or not the law is constitutional:

Rational Basis: Is there a RATIONAL basis for the legislature's design and
intent of the law in question

/ 23

d. Car insurance rates are higher for young, unmarried female drivers.

e. A state law prohibits the sale of beer to males aged 18 to 20 but not to females,
because more males had been arrested for drunk driving. Is the law constitutional?
On what basis?

f. A Florida towo passed a law against ritual animal sacrifk-es by members of a

particular religious secl Is the law unconstitutional? On what basis?

g. A medical school decided that the best way to increase minority enroJJment was
to give certain advantages to minority applicants. Each entering class reserved 16
of 100 places for minority applicants. A white applicant was refused admission
twice, even though his grades and test scores were higher than those of the
minority students. The Univ. ofCalifornia v. Bakke. Is the medical
school's policy unconstitutional? On what basis? What problems do you see in
this situation?

h. Should Affinnative Action be a remedy for discrimination?

Cases: Brown v. Board of Educatio11 (1957)

Craig v. Brow11 (1976)

Sluzw v. Htmt (1996)

Plyer v. Doe (1982)

J.E.B. l'. Alabama (1994)

Casey Martin v. PGA

Missouri v. JenkiiiS (1995)

v.

Evans (1996)

Plessy v. F ergeso11

Women's Rights and the Fourteenth

Amendment
From Jone Johnson Lewis,Your Guide to Women's History.

Controversy Over the Fourteenth Amendment

When the American Civil War ended, several legal challenges faced the newly-reunited
nation. One was how to define a citizen so that former slaves, and other African
Americans, were included. (The Dred Scott decision, before the Civil War, had declared
that black people "had no rights which the white man was bound to respect .... ") The
citizenship rights of those who had rebelled against the federal government or who had
participated in secession were also in question. One response was the Fourteenth
Amendment to the US Constitution, proposed on June 13, 1866, and ratified July 28,
1868.
During the Civil War, the developing women's rights movement had largely put their
agenda on hold, with most ofthe women's rights advocates supporting the Union efforts.
Many of the women's rights advocates had been abolitionists as well, and so they
supported the war which they believed would end slavery.
When the Civil War ended, women's rights advocates expected to take up their cause
once again, joined by the male abolitionists whose cause had been won. But when the
was proposed, the women's rights movement split over whether
to support it as a means of finishing the job of establishing full citizenship for the freed
slaves and other African Americans.
Why was the Fourteenth Amendment controversial in women's rights circles? Because,
for the first time, the proposed Amendment added the word "male" into the US
Constitution. Section 2, which dealt explicitly with voting rights, used the term ''male.''
And women's rights advocates, especially those who were promoting woman suffrage or
the granting ofthe vote to women, were outraged.

Some women's rights supporters, including Lu.QY and Frederick
Douglass, supported the Fourteenth Amendment as essential to guaranteeing black
equality and full citizenship, even though it was flawed in only applying voting rights to
males. SuS<Jn !. and .r"li7.ahell1 Cady5tautou led the efforts of some women's
suffrage supporters to defeat both the Fourteenth and Fifteenth Amendments, because the
Fourteenth Amendment included the offensive focus on male voters. When the
Amendment was ratified, they advocated, without for a universal suffrage
amendment.
Each side of this controversy saw the others as betraying basic principles of equality:
supporters of the 14th Amendment saw the opponents as betraying efforts for racial

/25

equality, and opponents saw the supporters as betraying efforts for the equality of the
sexes. Stone and Howe founded the American Woman Suffrage Association and a paper,
the Joun.0. Anthony and Stanton founded the National Woman Suffrage
Association and began publiShing the Revolution.
The rift would not be healed until, in the late years of the 19th century, the two
organizations merged into the National American Woman Suffrage Association.

Equal Protection for Women?

Though the second article of the introduced the word "male" into
the Constitution in respect to voting rights, nevertheless some women's rights advocates
decided that they could make a case for women's rights including suffrage on the basis of
the first article ofthe Amendment, which d1d not distinguish between males and females
in granting citizenship rights.
Myra Bradwell's case was one of the first to advocate for use of the 14th Amendment to
defend women's rights. Myra Bradwell had passed the Illinois law exam, and a circuit
court judge and a state attorney had each signed a certificate of qualification,
recommending that the state grant her a license to practice law.
However, the Supreme Court oflllinois denied her application on October 6, 1869. The
court took into consideration the legal status of a woman as a "femme covert" -- that is, as
a married woman, Myra Bradwell was legally disabled. She was, under the common law
of the time, prohibited from owning property or entering into legal agreements. As a
married woman, she had no legal existence apart from her husband.
Myra Bradwell challenged this decision. She took her case back to the lllinois Supreme
Court, using the Fourteenth Amendment's equal protection language in the first article to
defend her right to choose a livelihood. In her brief, Bradwell wrote "that it is one of the
privileges and inununities ofwomen as citizens to engage in any and every provision,
occupation or emplo)'Illent in civil life."
The Supreme Court found otherwise. In a much-quoted concurring opinion, Justice
Joseph P . Bradley write "It certainly cannot be affirmed, as a historical fact. that this [the
right to choose one's profession] has ever been established as one of the fundamental
privileges and immunities of the sex." Instead, he wrote, "The paramount destiny and
mission of women are to fulfilJ the noble and benign offices of wife and mother.''
While the Bradwell case raised the possibility that the 14th Amendment could justify
women's equality, the courts were not ready to agree.

Minor v. Happerset
While the second article of the Fourn::endt o...menoment to the US Constitution specified
certain voting rights connected with males only, women's rights advocates decided that
the first article could be used instead to support the full citizenship rights of women.

In a strategy carried out by the more radical wing of the movement, led by Susan B .
Anthony and Elizabeth Cady Stanton, woman suffrage supporters attempted to cast
ballots in 1872. Susan B. Anthony was among those who was did so; she was arrested
and convicted for this action.
Another woman, Vrrginia Minor, was turned away from the St. Louis polls when she
tried to vote -- and her husband, Frances Minor, sued Reese Happersett, the registrar.
(Under "fenune covert" presumptions in the law, Virginia Minor could not sue in her own
right.)
The Minors' brief argued that "There can be no half-way citizenship. Woman, as a citizen
in the United States, is entitled to all the benefits of that position, and liable to all its
obligations, or to none."
The unanimous decision of the US Supreme Court found that women born or naturalized
in the United States were indeed American citizens, and that they always had been even
before the Fourteenth Amendment. But, the Supreme Court also found that voting was
not one of the "privileges and immunities of citizenship., and therefore states need not
grant voting rights or suffrage to women.
Once again, the Fourteenth Amendment was used to try to ground arguments for
women's equality and the right as citizens to vote and hold office - but the courts did not
agree.

):2. 7

;l:!(i

J!

--- ---

'l'h" ""'" 1 that "II)L 111ay wr:ll hesJe.l lu

all tln:.;:;e years , lhire ILl
l u:ro " ul ll it;h ludenl h..ts SuughL t O enwiJ tn 01
I' .lll>kt h i, (: 1rb I il!lh " 2b l"u 0 :;, r :ld ul 724 WhuL IS the tUlpurtance of
such an nhs(!rva h un lo Are there other thau material
quahly, or eventnahly of ducalmnul uff.,l'lllt;s, I hat uoys might 11ever
h :lllPu,l As t>ort of } OHI o:vulualion of th1s tss:ue, cons1d11r
v. "' Lh.Jt ;ollund1ug the all-guts school would harm het in
.')tUIU wuy
lun. d1.JI1 c hn1 u>- th&t 111
tuuwh IIISI 1111 <

:i

t 'l'h<- rull,j<mly 3Ssumes

lhat i f Susan Vorch-

wwrw 1ll>wuJ l<l oll.cntl Central, Girl,; could no e.:dst as
16 nccc.ssllrily tn1e? Fmm lh e standpo int of r.il'ls, if she
waul:. lo lc;w .. , wl ,y nut hc1 gu? If were given freedo m of choice,

wluo tS l<l sny lhJt. G1rls would thsn ppeHr'! '!'be assumptiot1 sets !UI iodiVldu-

ll lgi rl b'l l b o group. such lbat the only way au imliviclnal girl ca n
ll<:tliVIl tl1jtlllhly 13 lu diooffiliute with gi rls as sucl1, with the result. tllal
.,;11'h1 ' tnal ll lllillllo o'' r. th is va lio 7 1fsu, why'!

B. Mc:N

ALl . FEMAI 1': 1NST I1'U1'10NS. MtSS/SSJPP/

l fNIH::N'UI'\' mu W tJMEN

I ' H m;AN

.loH so lll liu tn the nu rs1llg school ot Misslssipj>i
liui V<! I">.o ly lio1 Wotlllell pro1lnl'"d th p11nct-"l legal text uudcr till! sex
' utuhtl' l'llht" 111 o l versus .;oet.l schools
Uuive110ity

foi' Womeu v. Hogau

Cour\ of lt.d

58 II!:.

U , lll.ot t.: \.l'l '

1ll'l1vttnd 1"" opm1on of the

TI11J .;.,.._, 111 "'"'"' tlo" lnHTOW 1ssue uf whtitl1er 11 state statnle that
<!\dlltit!.> lu;t)t$ fllnn lh a bLa ttuppOiloU pmfessional llUISing !Ochoof
.. tl.e Bt)ll:ll Prtlt edllln Cluuse of tloti f'ouneenth Amendment

1881 ,

MissiSSippi

lurlustnul

uh<l f111 lhl' Education ufWhile Girls of the State of MIMIS>IP
tht stute oiiJliJOttt!d aJI. f.. mule college in Unit ed States

pt

'"'w

luo\vu l11lay llnvers1ly fur Women fMIIWl. has ftono 11.5

iru:.puun hnol t<ol l'lllnllmenl to wn1nun" lu 1971, 1\flJW
)t N11o owg

ltu.JIJIIUOlll .lou ll ,,g,ul .1 llii i'Se but dues nut hold u baccaiHu
\'olld U<'!;II'U In l ll ll o lll l;
In 1979, Hogan applied for adm i3SIOO to M1 rw

U7. il l 'I'll rl1Urloll td MIIW.

11111 hllllill'd J lu c li t ftuuuhnl(, now lJfOVide!i
"rl,t: Jur1nt1u :uui mm tho Mi-iS'!IiP'P'
c College hr the mnrol wtd
1ntdlt.d11al tlu: d'irl:t nf ths
IJy thu rMIIIlcUnc of lirll'l.s ia&ll
l Hll,ll\

r,,f

eciUC".:IliUI! In

(ur

Cirl$

nnd

tht:u \N.1111Ui 111 rmnual &:bunl

ftlr tht.'lr inStniC
Lt"lkl-.t!CJUIIl( f hUWafT'\phy
phy, hd.tgttaphy, r.nd rys-cwntini, o.nd a.n d
5IS"IIng, drowmy, l"'llfr.lVIlllo: unt.l JII'Untrog
nli!lh.illt. ..mJ

t111 HI

.........

tho

.t;l',

nnd lbc u u;l n!)plill3t.lon, uod fur fb'lf

lnst n tctloo in f;mcy. generoJ 11t1d pract'l&:al
nct'tll,.wnrk, 9nd in .:ruc:b otlter mtiustnaJ

branches as ietu.:t.1 frnm tiwtt to lime,

shaU as
or prop<r to fit
them for tloe practical affolrs uf lif '' Mills
t;Gdo Ann $ ;l7 117 3 (1972) M'lluts>lppl
uuUnlasns no other public uni .. en1+
ty or colletf Thus, we are not faced with the

""""":1!Y

c.Jue::.ti'UI vf whel her Slates can pr-ov,dt5 ".,epru-nl c but eq\Jal" uuda:rgradu"BL.f! uurtit1Hion1

for mai<S" dud females. (;( Vorchheimer

or

jHt."* ' hl= \\JI!.
uJnnwn w Sdooul u l
ullklills mformeJ l1im Lhat In, .:uo,l.t uu.l1t th,; .:umu< '" win. h J.,, ,.,,
inlet out could uot. enroll fm .:retltt llugun ou ndHm 11 1h .1, "''

CllUrl), da.uu10g the Slllt:le-iiel nrltml>.)iuns ptky

nun C luuse uf Lhu Funrteenlh _

vwlaiLI

E't"'' l'rut"

-('l:j;;O;;t;;;;t c:JOcl:'jL.,l

lhot uouwl.,ouuoc tf MIIW uo u IIIJII..:":Oc,1

6oht>OI betu> ,; Lu t he ''in
Lll< gTeat.ast !?"S" .ef 111111nluull!:, [! 111
pul11y

lhll Jl'ltoll!ll) h.uoll>c

sc!f<'ils is liu111!ll' loy 11u mu.1u

uo1versolly accepted, erlueai>onal theory I ha l t<thJI'Jln;u "lli111l

T tuifel'ii5 - -rrliie'ol:;l iiri. c;;iut eti \UI'I!II :UIIIllliJ I )' Jllltl)
mcnl in fovnr of the Stiite"'f'he
J?irtlt Cu cuit tJvlscd, lu>hllllb l h,ll
!111

"

popc' llll 1:. wl.crh ..r the Sl" t"

l:shnwu l tl.uL ll1t gen.J . , lwl'll
cl"ssifkBLI1W1 1::_ elulod
d.JI Ul\11$
tive _ .f'r)hu r.oii.rt
fauna n:illt had failed l.o slww thut r''''' ldiu!(
odncal ionnl nppol'tun it:y tor btH nol fu1 111ulu. u
su hslonl.fal to tiHl iulerdl. Ill lwldl l!utl liJ., pali')'
hcclltiSe
l11 s !t!'l \l!J ILD I pmteclion ul' t.loe 11 111'1
Rlriiiii tliiijiiCf,finent elf 1he Cuu rt Ill' .\ trlea.ls
Bc.;uu:,c Lhe! dulllt.mgcrl d l:h.:; lmluu l c:::; a1uuu;... .q ,plh auh on
1
lhu Udoi> of ill" scrutiny t(,., l::o.jllul l'illl<Uillll C lhll'' '
uf liiB r OIII'leoth Alllt'utlmenr Roed . That \Ius Slllllllt11')' p .. lio:)' ..
agnlrost rather thon ogains L feruul"' tluus 11111 ucmpl II h'"'" """"'} " '
!1'durP I dltmduJ,i of revttw Uot lt!c!Siulb ul'" I lo,,l llw 1111 I)'
setiunll to uphold u ll11l dusoiil...s lll.l,hlu.. lo ' "' II lr,, ..,. ;I t lo;
gander must tnrry lutr.lell 11f .lll eo<Cl',hll!;lr 't
lluu" lot tlu: l{lrthuoq; v F't<HSfJ'a,'l5(f (I 'S-i:l:l 111181 ,
t'eeney-Jrhe !!Jj[dtm IS .JlllU.

:lmiMUlAOl !!!'!! ! !J!l diSCI'IOIII!iiiUn
employed" are ,,tbsumlillll.l' to lhe acl1icvemeul of !hus.1 ' j

- ---- .- - - - - - - - ---

/ .-, ....

..,,J

AILhOitbt\1 the ttst for the \ dhllll)' "f .1 I...
,l.,.,_.lh
ll>nl> hughtfOIWiml, 11 must apphed fn" u( lix<'ll mll l.u clflh':l'lllll f lh
and ab1hL1es ol nnJ Cwv nnJ>l lwk.:n "' '"c' olJ 111 Uib

wheilltir statutory ol>.i!:!:!!"!:...ilsclf mhak :Jiul '"'I""'

Th11s, 15 1...1 ot 11f "'":
ili!1:t
!!!!I!!'!Hl! l u b.,

frontir:r(1

_ lf

J:!!!!.

QOII

l>c Hcd

.t..J 11111111:

!ll!..!a\J, substantial ul!ltdlvt:

Pl'&dcnl 'J'h e pUI'fliiSt! Qi'l-Cqiitnng t.haL closu Hlloto ons!!P 1> to
thot lhB volil'lity of .t classificullo.Jn i:: det.crnoinwl ll1nm!ll
rothijl' thun file m ecloamcnl P.pli cuqtm uf tulit.iouui"'t'rt;;j, ''""',l'llrvlu ,

.:l..ftt. llu:

611

181 W11 l1out

M!JW'; .rJ

wofked til flngw':

141" Althoul(h IJ.gn wuld ulteuud<l
cl4JSttt und rfc.Htvrrl cteJit in one uf
"talliupJ.X,r ti!d uur&ag

Ill ('.1 he cuutd opl) Ly drn'll'' u

<Ob3idonrblw d1tonc floro his h.nue " "'''
PI'Ot;IID.lS, Hvne o( Which

\\o:<$

huf)

lc:Uh.1lU \\HUhl 1111l 'IJ\1:

ri'(llhfl\l IV dlOtl:;.t

cy 01 dlttymg UJJ I....s

tow:.trd

tt

I ,,,,

11t 1"\l1t

OHd tlUJl l!l'.lt)li'JuHh!llu'

lhu 111,!111

Tf11J J 1ll

tH ruihl

h;.&(!. Jhmu.Jh! Jet:t autpu-..-.1

1

UtJOU ' 3 lnlrd:UI )u;! Wl ti1J Ulll

b.- H 0Jr 0 I U

273 1197!11

:1:111

:!_!. ' 1111:;A:..:t.::ll::.l!:c'::"::.'.::-----

i urnply rllva11lrl hy to tho llnoJtl rouge of

uJt tioJy iJJvHltduled hy lili:> f.ourt, >l nnttes l.hat te!Jr.d upon
ontrluccd assumpttou geucler ,_cou ld IJu t!_eyed as a "proxy for oth er. u1nre
gttrmune LJses of clossificatiou "/ Crwg v. to esLalJiish u hok L<!twecn
1

\t
l

. .: ,,"'

l J

nnd
--- -'T'Itu !!.!.!.!.!.I'!!X JUsltficnLtota lillt
11h1.y
llrmlurt:

is lh11t it ro!!!J>cnsates for di:scriminauon women and

or NilrSing;.-.11 lint! Lire Stale's argumentunpersuasive. In hmilcd

, !! !JIUtllur bH>;<>d favoring on'iliiiii"C'.ui be justiliod

l
f!!eiDOers "o1 the sei' tlllll is aispropOrilOiiiiLcJr burdned.\Sae
Schlesmger v 419 U.S 498 ( 19751 tfowever. wo consistently hnvc
cmvh:tsized thut ''the mere recitation n r n bemgn, co01peosat.ury purpose 1s uol

an uutomalic shield which protects ag:uusl any mqutry mto the actual
unJerlylllt,t R slutulory scheme" Weinberger v

JlU11l05e!

II ls rendily 11pporCiol tloul u Stall! cau ovoke a colli!)CU&IItnry

!Q.
art clnssiffr.lltion only if members ortnll

!iflhe"CiuSsrlicatfcin actlill!Ii i4ft!!

related
-

dassification. 11'fe co'ilslcleTed snch o in-webster, whit:h invohed a

ch"iil(i;'ngc 1.0 -:i statutory classllical1ou that allowed wnmen tn eliminate more
i.lW ..arning Yl'dl'S Lhan rnett for or computing Soclol Secunty I'PllN!
lwndi!<i AILioough tire effed of Ll1" clossificotion WI.IS lo allow l'iutnon
luglwr ntmrtlrly hunijfils tloao wen; lo men With the Sl,lJTle earning
we nphehl the oijhCulP., nQt.ing tlt"t tl Look into accow1t thel
wuoun "us sut:ll hovo b('en Ullfairly f'rom eorlllll" as Jillloh as weu"
uml "wurk[,>t.ll du<Jt'lly lo 1he reeulting economic dispuril.y. A oimila;
of dbcrlmuonhon llgPin>t influenced our decision iu Sdtlesiugut
v Bulbrd rltt!l"d, WI! cuustdurd a r...J.roJ sl3!Ute th8L grnnted retnale Nal
nllirel'!! a 1::1 yea lunule of commbstoned sen.ice before mondnlory dtEcbatge
l111l mole officers only a 9 }'1'1\T tenure. We that, because
were ual'l'uil from 'llmLat duly, they had had fewet opporhtoities
rntm,t ron lhnn hold lhoio male By alloWing women an adJitiunnl
lllll Y"drS to o rank before subjecting to mandatory
ri1s.:hurgc . I he slotule direclly cornpoosated for other sUth.tlory barriers tu

111 oluu 11 cuntrost, Mtsstss1pp1 has roede no shoWlnf I hot women ldLhed

!-Q !!!JLuiu troining'i:Ilr:lfefielil oYtiiii'Siiig- Oi'l.o

!!::'

l liuC will!f!". OTe

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holds today that !l- sin-gle
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rlr

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-

1me:

us

Citation:

unnea ;:,rares v.

Vlfglnta

518 u.s. 515 (1996)

Docket:

94-1941

Events:

Argued - January 1 7, 1996

Decided- June 26, 1996

Subjects:

Civil Rights : Sex Discrimination

Facts:

The Virginia Military Institute (VMI) boasted a long and proud tradition as Virginia's
only exclusively male public undergraduate higher learning institution. The United
States brought suit against Virginia and VMI alleging that the school's male-only
admissions policy was unconstitutional insofar as it violated the Fourteenth
Amendment's equal protection clause. On appeal from a District Court ruling favoring
VMI, the Fourth Circuit reversed. It found VMI's admissions policy to be
unconstitutional. Virginia, in response to the Fourth Circuit's reversal, proposed to
create the Virginia Women's Institute for Leadership (VWTI.._) as a parallel program for
women. On appeal from the District Court's affirmation of the plan, the Fourth Circuit
ruled that despite the difference in prestige between the VMl and VWIL, the two
programs would offer "substantively comparable" educational benefits. The United
States appealed to the Supreme Court.

Question
Presented:

Does Virginia's creation of a women's-only academy, as a comparable program to a

male-only academy, satisfy the Fourteenth Amendment's Equal Protection Clause?

Conclusion: No. In a 7-to-1 decision, the Court held that VMI's male-only admissions policy was
unconstitutional. Because it failed to show ''exceedingly persuasive justification" for
VMI's gender-biased admissions policy, Virginia violated the Fourteenth Amendment's
equal protection clause. Virginia failed to support its claim that single-sex. education
contributes to educational diversity because it did not show that VMI's male-only
admissions policy was created or maintained in order to further educational diversity.
Furthermore, Virginia's VWU- could not offer women the same benefits as VMI offered
men. The VWll., would not provide women with the same rigorous military training,
faculty, courses, facilities, financial opportunities, or alumni reputation and connections
that VMI affords its male cadets. Finally, the Fourth Circuit's "substantive
comparability'' between VMI and VWTI.. was misplaced. The Court held that the Fourth
Circuit's "substantive comparability" standard was a displacement ofthe Court's more
exacting standard, requiring that "all gender-based classifications today" be evaluated
with "heightened scrutiny,'' When evaluated with such "heightened scrutiny," Virginia's
plan to create the vwn. would not provide women with the same opportunities as VMI
provides its men and so it failed to meet requirements of the equal protection clause.
[NOTR Justice Ginsberg's announcement of the Court's opinion (below) may be
considered an address to the American public. It is a plain-spoken and forceful summary
of the majority position.]
Justices:

William H. Rehnguist- (Special Concurrence) Chief justice, wrote an opinion

John Paul Stevens - (Majority) Associate justice
Sandra Day O'Connor- (Majority) Associate justice

J2o

Classifying Arguments in the Case

The following is a list of arguments from the Universtty of California v. Bakke court
case. Read through each argument and decide which srde it supports. Write your
answer in the space provided.
(UC) the argument supports the university's side

(AB) the argument supports supports Bakke's srde

(8) the argument supports both sides

(N)

the argument supports neither side

_ _1. The Equal Protection Clause of the Fourteenth Amendment of the

Constitution states: "No State shall . . . deny to any person within its jurisdiction the
equal protection of the laws."
_ _2. The Fourteenth Amendment does not allow a state to impose distinctions
based upon race. The belief that some forms of discnmrnatron based on race mtght
be "benignA ts irrelevant to the demands of the Fourteenth Amendment.
_ _3. The Fourteenth Amendment states that people should be treated equally; it
does not state that people should be treated the same Treatrng people equally
means givrng them what they need.
_ _4. "In order to get beyond racism. we must first take account of race. There is
no other way. And tn order to treat some persons equally. we must treat them
differently. We cannot-we dare not-let the Equal Protectron Clause perpetuate
racial supremacy."
_ _5. The special admissions program at the University of California at Davis
medical school did not consider only those of minority races. but (in 1973) also
constdered white students who had been educatronally and/or economically
disadvantaged.
_ _6. The Fourteenth Amendment gives the right to equal protection to
individuals, not groups.
_ _ 7. "Benrgn" discrimination based on race is only valid where an individual can
point to specific acts of discrimination that have disadvantaged that person.
_ _8. Benefits provided to individuals because of alleged group discrimination are
not valid under the Fourteenth Amendment.
_ _9. "It Is unnecessary in twentieth-century America to have individual Negroes
demonstrate that they have been victims of racial discrimination: the racism of our
society has been so pervasive that none, regardless of wealth or position. has
managed to escape its impact."
_ _10. Some candidates admitted in the special admissions program at the
Unrversity of Californra at Davis had lower GPAs than those who were reJeCted tn
the regular admissions program .

l.:l I

Graphic Organizer
Gratz v. Bollinger

Grutter v. Bollinger

Basic Facts about the applicant

level (undergraduate or
graduate)

Summary of Selection Process

Constitutional Question

Constitutional or
Unconstitutional? (Your
prediction and explanation)

Actual outcome

I .., ,-

APPLY RIGHTS UNDER FIRST, F1F11I, AND FOURTEENTH AMENDMENTS

BAN ON BLUE JEANS

IN A GREENWICH, CONNECTICUT LOCAL NEWSPAPER, A REPORT
APPEARS ON FRIDAY THAT ANNUAL COMING OUT DAYYIS THE
FOLLOWING TIIURSDAY. MAY snr_ THE STORY STATES THAT GAYS AND
LESBIANS AND THEIR SUPPORTERS WILL WEAR BLUE JEANS TO SHOW
THEIR SUPPORT FOR GAY RIGHTS. THE GREENWHICH SCHOOL BOARD
LEARNS THAT MANY IDGH SCHOOL STIJDENTS INTEND TO WEAR BLUE
JEANS (WHICH ARE ORDINARILY ALLOWED) AND TIIAT ANOTHER GROUP
OF STUDENTS PLANS TO WEARBUITONS THAT SAY 'GOD MADE ADAM
AND EVE, NOT ADAM AND STEVE" WHICH WILL BE PROVIDED BY A LOCAL
CONSERVATIVE GROUP. THE SCHOOL BOARD ANNOUNCES THAT "ANY
STUDENT WHO WEARS BLUE JEANS TO SCHOOL ON MAY 5TH OR WEARS A
BUTION EXPRESSING AN OPINION ABOUT HOMOSEXUALITY WILL BE
SENT HOME FOR Tiffi REST OF THE DAY."

CAN THE SCHOOL BOARD DO TillS UNDER SUPREME COURT CASE LAW?

133

THE CIVIL RIGHTS ACT OF 1964

Title VII of the Civil Rights Act of 1964

Title VII is the primary federal protection against job discrimination in the private
sector. Since 1972, the statue has applied to state and federal employment., The
prime directive of Title VII is found in Section 703(a), 42 U.S.C.A. section 2000e-2(a):

UNLAWFUL EMPLOYMENT PRACTICES

(a) It shall be an unlawful employment practice for an employer( l) to fail or refuse to hire or to discharge any individual, or
otherwise to discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of
such individual's race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants
for employment in any way which would deprive or tend to deprive any
individual of employment opportunities or otherwise adversely affect his
status as an employee} because of such individual's race, color, religion,
sex, or national origin.

The early versions of what was to become Title VII originally targeted only
discrimination because of race, color, releigion, or national origin. The
title's prohibition of sex discrimiation was proposed by Representative
Howard Worth Smith, a southern Democrat vehemently opposed to the civil
rights bill. Having failed to kill the 1963 bill in his Rules Committee, as he
had killed previous bills, Smith proposed to the House of Representatives
the addition of the word "sex'' to Title VII's list of impermissible bases for
employment decisions. Smith hoped that by transforming the civil rights bill
into a law guaranteeing women equal employment rights with men - thus
drastically afffecting virtually every employer, labor union, and
govemtmental body in the country- the bill would become so controversial
that it would fail, if not in the House, then certainly in the Senate.

Title VII of the Civil Rights Act of 1964 was a landmark law enacted ln terms of leveling
the playing field for potential job applicants and employees. Title VII prohibits discrimination on
the basis of race, color, religion, sex or national origin (eeoc.gov). Title VII is considered to be the
most important equal opportunity law ever enacted because it contains the broadest coverage,
prohibition and remedies to individuals. Title VII was passed to ensure you would be considered
for jobs not on the basis of the color of their skin, religion, gender or their national origin. Rather,
you should be selected on the basis of the abilities necessary to perform a job. Title Vlf applies to
all school districts, private schools and charter schools. You have the right to file charges against
your employer, administrators or if discriminatory practices outlined in Title VII of the
Civil Ri'g hts Act of 1964 are not followed. The passage of Title VII started a new revolution
concerning how employees are selected for employment.
Title VII only applies to employers with 1S or more employees. with several notable
exceptions:
(1) Religious organizations
(2) Private clubs
(3) Places of employment connected to Indian reservations.
Although Title VII of the Civil Rights Act of 1964 paved the way for an end to discrimination in the
workplace, a modest amount of discrimination still manifests in organizations. This is one reason
why diversity training programs have become so popular in the past ten years and why employers
around the world invest billions of dollars annually in such programs. Training programs
commonly implement a face-to-face seminar/conference and follow-up the training using classes
in a learning management system . However, diversity training programs initiated by organizations
are often times inadequate and developed for the wrong reason. There are many instances when
diversity programs lack funding and are simply a band-aid to solve diversity problems in the
workplace. Diversity training attempts to correct discriminatory practices by co-workers and
administrators, which can include sexual harassment, racism, age discrimination and biases held
against homosexuals.
Organizations can protect themselves by implementing diversity programs because when
Incidents barrel out of control, employees often fight back by pressing charges and filing
devastating lawsuits against the supervisor and the employer in question. Although the majority
of lawsuits occur as a result of discrimination practices in corporate America, school districts have
faced countless lawsuits dealing with VII violations. In addition. many students have won large
settlements because the school district failed to remedy discrimination problems. Investing time
and money alone does not necessarily solve discrimination and harassment issues.
Cited below are several examples of discriminatory practices occurring throughout organizations
today that could be avoided by more adequately performing well thought out diversity training.

Common forms of discrimination covered by Title VII:

Sexual harassment
o Quid pro quo
o Hostile environment
Racism
Age discrimination
Sexual orientation

The Main defenses are those which qualify under the meaning of"unlawful employment
practice". Section 703 presents a defense for practices based upon bona fide occupational
qualifications (BFOQ).

BONA FIDE OCCUPATIONAL QUALIFICATION- To establish the

defense of bona fide occupational qualification the defendant has the burden of proving
that a definable group/class of employees would be unable to perform the job safely and
efficiently or that it was impossible or highly impractical to consider the qualifications of
each such employee and that the bona fide occupational qualification is reasonably
necessary to the operation of the business.

It is unlawful for employers to discriminate on the basis of age, religion, gender,

or national origin when hiring or terminating an employee. There is, however, a major
exception to tllis rule. It occurs when any of those factors is considered a 'bona fide
occupational qualification', or BFOQ (B-F-0-Q). A bona fide occupational qualification
is defined as any requirement which when viewed on the surface seems biased, but
actually is reasonably necessary for the performance of the job. For example, religion
could be considered a bona fide occupational qualification when membership in a certain
religion is reasonably necessary to the performance of a job. A company selling religious
books might be allowed to insist on hiring sales people of the particular religion involved.
The company, however, could not refuse to hire a janitor because of his religion, as it
would not be 'reasonably necessary' to the operation of the business. Any limitation or
specification made by an employer, which otherwise would constitute discrimination, is
only permitted if it's based upon a bona fide occupational qualification.
To establish a case for BFOQ, the employer must be able to demonstrate that the
discriminatory criteria is sufficiently related to the job in question and that it's a necessjty
for the general operation of the business. If employers can't demonstrate a business
necessity for the ctiscrirninatory criteria, they must stop using that procedure or alter it in
such a way that it's no longer discriminatory. Keep in mind that even if employers can
demonstrate that a discriminatory requirement is valid, they can't use it if there are other
procedures or requirements that would accomplish the same goal and have less of a
discriminatory effect. It should also be noted that wlless privacy is a concern, a BFOQ
exception can't be used in cases where the refusal to hire is based on the personal
preferences of co-workers, the employer, clients, or customers. For example, genderbased staffing in a medical setting may be a BFOQ when it's necessary due to patients'
privacy concerns, but not hiring a female for a sales job because particular customers
refuse to conduct business with women is unlawful. Consequently, even though it's
generally good business practice to try to provide customers with what they want,
employers may nonetheless be held liable under the employment laws for doing so.

Dothard v. Rawlinson

United States Supreme Court

No. 76-422 Argued: April19, 1977 - --Decided : June 27, 1977

After her application for employment as a "correctional counselor"

(prison guard) in Alabama was rejected because she failed to meet
the minimum 120-pound weight requirement of an Alabama statute,
which also establishes a height minimum of 5 feet 2 inches,
appellee Rawlinson filed a charge wlth the Equal Employment
Opportunity Commission against appellant corrections officials
challenging a regulation establishing gender criteria for assigning
correctional counselors to "contact" positions (positions requiring
close physical proximity to inmates) as violative of Title VII of the
Civil Rights Act of 1964, inter alia. A three-judge District Court
decided in appellee's favor. The court found the challenged
regulation impermissible under Title VII as being based on
stereotyped characterizations of the sexes, and, rejecting
appellants' "bona fide occupational qualification" defense under
703(e) of Title VII , ruled that being male was not such a
qualification for the job of correctional counselor in a "contact"
position in an Alabama male maximum security penitentiary.
Held:

1. In the particular circumstances of this case, the regulation in

question falls within the narrow ambit of the "bona fide
occupational qualification" exception of S 703(e). Alabama
maintains a prison system where violence is the order of the day,
inmate access to guards is facilitated by dormitory living
arrangements, every correctional institution is understaffed, and a
substantial portion of the inmate population is composed of sex
offenders mixed at random with other prisoners, and that therefore
the use of women guards in "contact" positions in the maximum
security male penitentiaries would pose a substantial security
problem, directly linked to the sex of the prison guard. Pp. 332337.
418 F.Supp. 1169, affirmed in part, reversed in part, and remanded .

STEWART, J., delivered the opinion of the Court, in which POWELL

and STEVENS, JJ ., joined; in all but Part II of which BURGER, C.J. ,
and BLACKMUN and REHNQUIST, JJ. , joined; and in all but Part Ill of
which BRENNAN and MARSHALL, JJ., joined. REHNQUIST, J., filed an
opinion concurring in the result and concurring in part, in which
BURGER, C.J., and BLACKMUN, J., joined, post, p. 337. MARSHALL,
J., filed an opinion concurring in part and dissenting in part, in
which BRENNAN, J ., joined, post, p. 340. WHITE, J. , filed a
dissenting opinion, post, p. 347. [p323]

J37

Gender Discrimination
Title VII of the landmark Civil Rights Act of 1964, " ... outlaws discrimination in employment in any business on
the basis of race, national origin , sex, or religion : (1) This and othe r legislation has been effective in beginning
the process of erasing discrimination in employment and promotion in virtually all areas of business.
However, widespread discrimination is not yet totally a historical practice . In some fields gender discrimination ,
for example, is still a major concern .
"Fed up with comments such as 'men are jerks' and 'men are idiots,' a former male nurse at Eastern Maine
Medical Center has filed a lawsuit in federal court alleging he was sexually harassed by the female nursing staff
and discriminated against on the basis of gender." (2) This one example of a nurse disgruntled with his
profession is not an isolated concern.
5.4% of the 2.1 million R.N.s (registered nurses) employed in nursing in the United States are men." (3) As a
minority group in the profession, men face many ofthe same challenges women face in male-dominated
businesses. Potentially, men may face discrimination or harassment from bosses (male or female), fellow
nurses, and in many cases patients who are uncomfortable With the idea of a male nurse.
One male nurse noted, "In my 30 years as a nurse, I have seen many unfair practices in which male nurses and
minorities were passed up for promotions due to gender. This practice continues today and is slowly surfacing in
courts throughout the country." (3) The understanding of the role of nurses in health care has changed over the
years. Instead of just being viewed as an assistant, nurses are now recognized as valuable , uniquely skilled
partners in the health care process. Nurses are increasingly moving into management positions. If males are
being denied consideration for these senior positions based on gender, one glass ceiling may have been
smashed just to create another.
A nurse stated, "I've had female colleagues pinch my butt and tell me I'm a 'hattie.' but I ignore it." he says. "But
what would they do if I returned the action? I shudder to think about it." (4) While it is likely most men would say
they would enjoy such behavior from female coworkers, there is an element of bravado involved in saying so ,
Men value professlonalism and personal respect in the workplace as much as women .
In the eyes of the law there is no double standard in gender discrimination cases. A male has just as much a
right to complain as does a female. However, in the eyes of society a male who complains of sexual harassment
may be viewed as simply being thin- skinned or unable to cope with the work environment. It should be noted
that the same ttling is often said of women Who complain of harassment.
For male nurses , professional behavior is a particularly important part of their job. In many cases patients who
would not have any Issues with being treated by a male doctor are uncomfortable with the idea of being treated
by a male nurse. In order to overcome the stereotypes associated with men in this field a male nurse must
display a professional, caring attitude and persevere.
This issue can be even tougher to deal with for black men who choose to be nurses. "It has been kind of tough
being a black male in a predominantly white female profession. I've caught some looks like , 'What is he doing in
nursing? He doesn't look like a nurse.' I feel like I must work twice as hard as others because one, I'm black,
and two, I am a (3) Popular culture often portrays the only careers open to black men as misogonistic
rappers, sports stars , or exactly nutse material. It can be difficult for a black male to convince
people that what they see on television is not reality.
Uke all stereotypes, family and peer attitudes about male nurses filter to children . Francisco Navarro, a nurse at
a children's hospital explains, "Some of the kids (I work with] have a hard time dealing with the tact that I am a
nurse because they say that only women can be nurses." He, "believes the notion that only women are nurses is
an idea the children learned from schoolmates or family . He also notes that society often labels male nurses as
being homose)(ual." (3)

These stereotypes are also propagated through entertainment. The character Gaylord Focker from the movies
"Meet ttle Parents and "Meet the Fockers" is ridiculed throughout the films for his choice to be a nurse despite
his skills and test scores which indicate he could be a very successful doctor. His unconventional name is also
an obvious jab.
The situation for male nurses Is not entirely grim. Many male nurses are having no problems with harassment or
discrimination. Vern Bullough, a professor of nursing asserts, "Some hospitals, for a while, tried to keep men out
of ob/gyn floors and women's health wards. But generally, that has not happened in recent years. There is still
some difficulty for men to become nurse-midwives , but even that has broken down... Some women deliberately
discriminate against male nurses, but this is a small minority of people. I've had tremendous support from female
nurses." (5)
As time goes by the discrimination against male nurses will end as more dedicated male nurses enter the field
and show they are capable of doing the job well. When male nurses become a more prevalent face of the health
care industry tnore patients will begin to understand that a good nurse can come from any gender or race.
This transformation is crucial. Nursing is one of the most difficult professions a person can choose and
shortages of registered nurses are common. Making men feel more welcome in the profession could drastically
increase the availability of quality nursing care ,
In the four decades since passage of the Civil Rights Act, gender discrimination has become vastly less
common. Women are putting their lives on the line in the military and are CEOs of major corporations. The
business world and the military have become better for these changes. Though full equality has not been
reached in these male dominated worlds, as it has not in the nursing profession, significant progress is being
made, and with changing attitudes the future is bright.

U.S. Appeals Court

FEMALE OFFICERS
CROSS GENDER SUPERVISION
Everson v. Michigan Deot. of Corrections, 391 F.3d 737 (6th Cir. 2004). Male and
female corrections officers brought a class action against a state corrections agency,
alleging gender discrimination in staffing positions within female prison housing uruts.
The district court granted judgment in favor of the officers and the state appealed. The
appeals court reversed and remanded, finding that female gender was a bona fide
occupational qualification (BFOQ). The court held that female gender was a BFOQ under
Title VII for correctional officer and residential urut officer positions in housing units at a
female prison, since the exclusion of males from such positions was reasonably necessary
to the normal operation of facilities. According to the court, the BFOQ materially
advanced the security of the prison, safety of inmates, and protection of privacy rights of
inmates, and reasonable alternatives to the plan were not identified. (Michigan
Department of Corrections)

129

Whether gender discrimination for privacy reasons is a bona

fide occupational qualification must be decided on a case-bycase basis
Slivka v. Camden-Clark Mem'l Hosp. , _ S.E.2d _,No. 31404.2004 WL 323199 (W.
Va. Feb, 19, 2004).
The West Virginia Supreme Court held that a hm'J)ital's practice of only hiring female
nurses for its obstetrics department might be a bona fide occupational qualification, but
the hospital must present evidence that the discrimination is essential to preserving a
p1ivacy right.
Here, Slivka, a male registered nurse with experience working in the obstellical
departments of several hospitals, applied at Camden-Clark Memorial Hospital. He was
told the hospital djd not hire male nurses to work in .o bstetrics because of patient privacy
concerns. Slivka sued Camden-Clark, alleging violation of the stare human rights act. The
trial 00urt granted defendant summary holding the hospital's requirement that
obstetrical nurses be female was a bona fide occupational qualification (BFOQ).
Reversing, the state high court held that summary judgment was improper because
defendant presented insufficient evidence. Noting that the only defense to a faci ally
discriminatory emploYJnent policy is mat the policy involves a BFOQ, t11e court said the
question here is what elements are necessary when privacy interests are alleged.
The U.S. Supreme Court. the court said, established a two-pan test in Dothard v.
Rawlinson, 433 U.S. 321 (1977). for determining whether gender can be a BFOQ: (1) the
essence of the business would be undermined by hiring members of both sexes, and (2)
there is a factual basis for believing that almost all persons of one gender cannot perform
the job duties safel y and efficiently.
Many courts also require defendants to prove it is not feasible to assign job
responsibilities in a selective manner so that both ptivacy interests and equal employment
obllgations arc met, the said.
The court decided to follow other jurisdictions, holding that employers must show why
alternatives to the genderexcluding policy would be impossible or impractical to achieve.
Further, the court said, a detailed and thorough analysis must be made on a case -by-case
basis to determine whether privacy concerns trump equal opp01tw1ity.

In this case, defendant presented evidence that, among other things, obstetrics is different
from other departments in that all of the patients are females whose genitalia are
constantly exposed. and nurse duties often in volve intimate procedures. However, the
court said this evidence is insufficient because defendant failed to present patient
testimony or explain how it is different from the several other hospitals in the area that
employ male ohstenics nurses.
Accordingly. the court remanded for trial.

Facts About Sexual Harassment

Sexual harassment is a form of sex discrim ination that violates Title...Jl.ll.Qt11:lg CiY.i.l Rights ,e.ct oU964.
Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a
sexual nature constitutes sexual harassment when submission to or rejection of this conduct explicitly
or implicitly affects an individual's employment, unreasonably interferes with an individual's work
performance or creates an intimidating, hostile or offensive work environment.
Sexual harassment can occur in a variety of circumstances, including but not limited to the following :
The victim as well as the harasser may be a woman or a man. The victim does not have to be of
the opposite sex.
The harasser can be the victim's supervisor, an agent of the employer, a supervisor in another
area, a co-worker, or a non-employee.
The victim does not have to be the person harassed but could be anyone affected by the
offensive conduct.
Unlawful sexual harassment may occur without economic injury to or discharge of the victim.
The harasser's conduct must be unwelcome.
It is helpful for the victim to directly inform the harasser that the conduct is unwelcome and must stop.
The victim should use any employer complaint mechantsm or grievance system available.
When Investigating allegations of sexual harassment, EEOC looks at the whole record: the
circumstances, such as the nature of the sexual advances, and the context In which the alleged
incidents occurred . A determination on the allegations Is made from the facts on a case-by-case basis.
Prevention is the best tool to eliminate sexual harassment In the workplace. Employers are encouraged
to take steps necessary to prevent sexual harassment from occurring. They should clearly
communicate to employees that sexual harassment will not be tolerated. They can do so by
establishing an effective complaint or grievance process and taking Immediate and appropriate action
when an employee complains.

1'/J

QUID PRO QUO

Quid pro quo ("something for something") cases were the first
type of sexual harassment to be recognized by the Supreme
Court of the United States.

In 1986. In the case of Meritor Savings Bank v. Vinson.

477 U.S. 57, a female bank employee was sexually harassed,
in and outside of work by her supervisor, who was the vice
president of the bank. She had worked at the bank for four
years, before she took a sick leave and was fired for tailing to
return to work. She tiled suit and explained that she began as
a teller and. based on her work performance, was promoted
to assistant br-anch manager. During her probationary period
as a teller-trainee, the supervisor had treated her much like a
daughter. He made no sexual advances during that time.
Later, he invited her out to dinner at which h.e su{)gested that
they go to a motel and have sex. At fJrst she refused, but out
of fear of losing her job she agreed. After that at her
supervisor's repeated demands, she had sex at least 40
times over a four year period, usually at the bankf both
during and after business hours. He also fondled her in front
of other her into the women's rest room.
exposed himself to herJ and ra:ped her on several occasions.
There was also evidence that the supervis'Or llad inappropriately touched other female bank Because she
was afraid of him, the victim never reported his harassment
to the bank.
Like many other courts during that time, the trial judge in
the above case found that she voluntarily had a relationship
with her supervisor and it had nothing to do with her
employment at the bank. She appealed to the federal appellate
court, and it disagreed with the trial court, stating that her
supervisor's demands for sex were a condition of employment
and were not welcomed by her.
This time) the employer appealed, and the case went to the
Supreme Court of the United States. There, the Supreme
Court held that the sexual conduct was clearly not welcomed
by her since she submitted to the sexual relationship for fear
of losing her job. The Court said that it was "demeaning and
disconcerting" for a worker to have to "run a gauntlet of sexual
abuse in return for the privilege .of being allowed to work and
make a living." With these words, courts opened their doors to
the qui.d pro quo form of sexual harassment.
The two legally required elements of a quid pro quo case are:
an employeeis subject to unwelcome sexual advances and
.,..... .. \...._; __ ; ..... _

.. 1

m

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l'hus, the employee, to keep her job/ was required to submit to sex or face being fired if she refused.
In addition to covering employees1 it is quid pro quo sexual
harassment if a job applicant refuses sexual demands of an
employee who makes hiring decisions (or tells her that he
does) and is denied the job. It may also be quid pro quo sexual
harassment if an appli cant for a job is rejected in favor of
another less qualified person simply because the person hired
submitted to the sexual demands of the supervisor.
Today, many of the issues have been answered in quid pro
quo cases. Showing that there has been a "sexual advance" and
demonstrating that the vktim was hired, fired, demoted or
otherwise actually affected is pretty straightforward, but a few
issues continue to be raised in this type of sexual harassment
case today. Often these include issues such as cases in which
there has been a former intimate relationship or in cases of
favoritism.

Former Relationship
This issue involves the question of whether the sexual acts
were "unwelcome." Where there was a former sexual relationship between the parties, courts look to see how the person who
complains of sexual harassment put her former boyfriend or
spouse or significant other on notice that the relationship had
ended and that his advances were no longer welcome. The
plaintiff must have made it clear that his advances were no
longer welcome.
Favoritism
This issue a supervisor promotes his girlfriend to a
position you were also qualified for. If the person promoted is
actually his girlfriend, it will not generally be considered sexual harassment but if there is a pattern where workers who
submit to sex with the supervisor get promoted1 then sex may
be considered a "condition" of the job and it can be found to
be sexual harassment under the law.
1

HOSTILE

The second type of sexual harassment, hostile env'ironment,

was clearly recognized in 1980 with the adoption of the EEOC
guidelines. In this type of case, the victim cannot show a job
loss or pay cut, but the work environment is so hostile that
it affects her working conditions.

Elements
Hostile environment cases are not as easy to identify as quid
pro quo cases, because there is no exact formula that
determines what constitutes a hostile environment. In the
workplace, the legal elements of a hostile environment case are:
an employee was subject to unwelcome sexual
harassment and
the harassment unreasonably interfered with the
employee's work performance; or,
the harassment created an intimidating, hostile or
offensive environment.
Sufficiently Severe or Pervasive
In considering whether sexual harassment is "sufficiently
severe or pervasive" so as to alter the conditions of an employee's
work and create an abusive environment, courts look at all of
the circumstances presented, including:
how often the harassing conduct occurred:
how severe the conduct was;
whether the conduct was physically threatening or
humiliating;
whether the conduct unreasonably interfered with the
victim's work performance; and,
the presence of psychological harm to the victim.

Isolated Comments
Because the sexual harassment has to literally "change the conditions" of her environment, the Supreme Court has said that
a single sexual comment or remark, even if it was obnoxious
or demeaning, is not enough, by itself, to demonstrate a hostile
environment. This is also why an instance of flirting, innuendo
and even isolated obscenity or vulgarity will not establish the
existence of a hostile environment. But it is also true that there
is no clear minimum level of conduct that must be shown. For
example, if a single derogatory comment is repeated by many
different workers, then the conduct' is no longer isolated and
can be considered sexually harassing. It is also true that the
more severe the harassment, the less need there is to show that
it has been repeated,

EMPLOYER DEFENSES
Once the plaintiff establ.i.Shes her claim of sexual harassment,
the employer is entitled to respond. In a quid pro quo case, for
example, an employer may:
disagree or
explain that the worker was affected for a legitimate
reason.
For example, the employer may explain that the decision to
fire the worker was not based on her sex, but instead was
based on her poor performance or absenteeism. In a hostile
environment case, the employer will claim that it was:
isolated conduct or
even if the conduct was repeated, it was not so severe
that it affected the employee's work conditions.
In both types of cases, an employer can try to show that
the conduct was 'welcomed' by the plaintiff. In certain cases,
the employer may also raise the defense that it had a sexual
harassment pohcy but the victim failed to use it so it never
had a chance to remedy the situation.

PRETEXT
Once the employer puts on its case, the plaintiff is entitled to
argue that the decisions made were "pretextual," i.e., that it
was a cover for the true motive of sexual harassment. For
exam ple, where the victim of harassment was laid of but no
one else was, a court could find that the layoff was due to the
harassment or in retaliation for reporting despite the
employer's argument that the layoff was because of a downturn
in its business.

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FIGURE 1: SEXUAL HARASSMENT

Sexual Misconduct
Employee is subject to unwelcome sexual advances (not solicited by the employee

PLUS
Quid Pro Quo
Hostile Environment
Submission to such
conduct
( 1) is made a term or
condition
of employment or
(2) forms a basis for
employment decisions
aflecting
that individual

I
I

I
I or '

Conduct is sufficiently severe or

pervasive that it
(1) unreasonably interfering
with work performance or
(2) creating an intimidating,
hostile, or offensive
environment

!Employer always liable

Employer liable
if knew or should have known
and failed to take appropriate
corrective action

The Obnoxious

that he or she was offended by the conduct in question and that a reasonable person would find the
conduct abusive as well. Thus, Harris did not b.ave
to show harm to her psychological well-being in
order to win her sexual harassment suit.
heresa Hirris,worked as a manager at Forklift
The Court found it difficult to say e:<'actlfwl-Hit
Systems.
The
.of tha wmpany, Charles
conduct
would be considered.abusive.or .hostile..
1
1_Hc:rd2! !o em the job like,
Instead, courts must look at all the circumstances
surrounding the offensive conduct: HO'w often did 'it
1 ''You're a woman," anCt "Let's go to the
yo(,lr raise." These comocGur? How severe was it:? Did it un,r:easonably ----.I J?..
presence of other
interfere with the victim's work performance? Was
1
employees. Tn a99ition, Hardy asked Harris to
the victim physically threatened
nuriiiliated'?
h.is front pants pockets and
singl@--fa-ctor is make a case for a hostile
i made sexual.Q.!!U!lentc; about her clothes.
or abusive environment. While the mere utterance
P.feetin_g, Harris to
ofai1does- n?t violate
t-H-ardy-abottt-hisfb.ehavt'O. r. -At that meetmg- he-apololaw, aceerdmg tG-}l:lSaee Sandra Day 0 Connar!s- ---- -j
f_gized, said he an9-.. ___ - __ into _?e_!ore th':._ __ _
[ to stop the _behtor. B':t obnoxious comharassing conduct leads to a nervous breakdown."

It

r--At

or

-1'

-2_ --

1 Rights Act of 1964-tclaiming sexual harassment. At

)
r th"E!"tri'a:l;-other fe ale employees-testified -a. -Why is sexual--harassmentconsidered a form --j
..i
. and .con.:. _____ Hoo,.y _i? it reiC!!ed tq_____
sidered them to jokes. Harris testified that the
Title VII's goal of equal opportunity.?
I
upseti hen-cn:nucn tha't shebegan-cn-ink- .. ti;--wnat w"l:Kffufstanaam a ec,oea bYfl'ielT.'S:"' ----)
: ---- ..
_ .StJpreme Cour-t in tbe. Hauis.case?. l:iow. ctoes_ - f
1
The concluded that, while Hardy s
this differ from the standard used by the trial
l
Benavwr was anppyTng andl.nsefis.iti'\Ye;Jtrua noc - - - coUiTwlienfffirsfliearatlie case?---
:
1
,.. create.a.hos.tile,.4husiv.e..erucironment..nor..did it.... __ - Assume--the Harris-ease-ts-ffied-agafrr.-th+s
wi!_h Hrufris' _
.. __ 11
! l5ehevedthat anCi tnat It
u.s. Supreme court. As Harris' attorney,
r w.ouJd..offetJd..a. .m. ..... - - what-argumentswould-ym:rmake-on--her-- - - ,
1-:tion fo:md, _however, that the
behalf? As Hardy's attorney, what ar_g_uments
I
, conduct nof as to seriously affect hei
you. hls be-half? -lf You
..the GGU:t

the trial judge, would you fim:J sexoal harass-

_:'1-'tn The
... __ ment in this ca.s.e? _Expl.aifl .YQUf re.aso.ns ._ __ _
1 court of J4pheld the trial court's decision,
d. What steps should companies take to deal
; -ancl HaFI'ts-appe-aled -to Supreme Court.
with tile Tssue of sexual harassnieiifin tne
L_ __ -
b'_:us _d_ e__c__is__ ion, the U.S. Su_preme
- __
WGrkplace?.What steps-do ymJ .t.t:link-
- - i Court established!a new standard for deciding sexemployee should take if he or she has been
j--ual
Court stated that Title VII
avictim of sexual harassment? couid medfa-:
1
i_s "'!_l}_e_n_jl,. abusive work environ1
tion help?
- - i
l ment has been The victim must only show
.. (
-!--

L
i

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