This page was established so you can find
laws and court cases that affect youth. We have provided many,
but certainly not all, of the references young people need. We
are in the process of building the library to better assist you,
so keep checking for new material.
If there is a law or case that you would like to see here, let
the Council Director
know.
THE CONTENTS OF THIS PAGE SHOULD NOT
BE CONSIDERED LEGAL ADVICE OR BE USED IN PLACE OF CONSULTING WITH
AN ATTORNEY. Table Of Contents
You can either
just click on the area of your interest and be brought to that
topic, or scroll down through the library to look at the cases.
Case Law
Bill Of Rights
This case established the right
of young people to procedural rights under the 14th Amendment
prior to being committed to a juvenile home. The case came out
of a complaint by a neighbor that 15 year old Gerald Gault made
an obscene phone call to her. Based on that complaint , Gault
was arrested and the steps the police took after that were found
to be inconsistent with the 14th Amendment. No notice was left
for Gault’s parents, the petition filed by the arresting officer
was not seen by the parents until 2 months later, and common procedures
(swearing of witnesses, making a record of the hearing and having
the complainant present) were not followed. The Supreme Court
held that "…neither the 14th Amendment nor the Bill of Rights
is for adults alone." The Court concluded that a juvenile in a
juvenile proceeding had the right to due process of law, including
the right to notice of the charges, the right to counsel, the
right to be advised that he need not incriminate himself, and
the right to confront and cross examine his accusers.
Curfew
**City of Milwaukee
v. KF 426 N.W. 2d 329 (Wis. 1988)
This case concerned the constitutionality
of the Milwaukee curfew ordinance, which the Supreme Court of
Wisconsin found to be constitutional. The case arose from citations
issued by the MPD to approximately 95 youth who were at a dance
at the War Memorial Center sponsored by the University of Wisconsin
Black Student Union. The purpose of the dance was the promotion
of higher education and was overseen by several adults, security
personnel, and police officers. The MPD, who were at the War Memorial
Center because they had received complaints of vehicle thefts
in the area, requested that the individuals in charge of the dance
advise the attendees of the curfew ordinance and request that
youth under 17 leave the premises by 11:00 PM. The Officers returned
to the dance shortly after 11:00 PM and were advised of vandalization
to the vending machines and discovered graffiti associated with
certain gangs. The police officers then entered the dance and
observed approximately 70 people under 17. The dance was stopped
and those who appeared to be under 17 were stopped and questioned.
Those who were under 17 were arrested and taken to the police
administration building. The juveniles whose parents arrived to
pick them up were permitted to leave without citation and there
is a dispute if the other juveniles were permitted to call their
parents prior to being taken to the police administration building.
K.F. (15 years old) and D.A. (16
years old) were charged with violating the curfew; they pleaded
not guilty. They also filed motions to dismiss the charges on
the basis that the curfew ordinance was vague and overbroad. The
trial court denied their motion and found the ordinance constitutional,
and found the two guilty of violating the ordinance. On appeal
the Wisconsin Supreme Court held that the interest of the city
in protecting youths and curtailing juvenile crime is compelling
and that the ordinance restricts the movement of juveniles for
only a narrow part of the day in "public" places. The Court found
the ordinance to be drawn as narrowly as practicable and because
they found that the ordinance met the strict scrutiny standard
requiring a "compelling state interest" it was unnecessary to
determine whether they would adopt a less stringent "significant
state interest" standard as applied in Carey V. Population
Services International, 431 U.S. 678, with respect to juveniles.
**JFF, In Interest
of, 473 N.W. 2d 546 (Wis. App. 1991)
This case arose when a juvenile
claimed he was illegally searched, and thus the cocaine that was
result of the search should be suppressed. The search occurred
after two Milwaukee police officers observed J.F.F. and another
person walking together on the street at 1:25 AM. J.F.F. was carrying
a stereo speaker with a wire dangling off the back of it. The
police officers stopped J.F.F. because they suspected the speaker
had been "taken in a burglary or through the commission of some
other crime." They also patted him down and found no weapons or
cocaine. J.F.F. told the officers that they were on their way
home. The officers determined that J.F.F. was a juvenile and arrested
him for violating curfew.
The trial court held that the initial
stop was lawful and appropriate and the pat down search was also
appropriate. It held that the arrest for curfew violation was
unlawful and that the cocaine obtained from the subsequent search
should be suppressed, as it was not in "plain view". The case
was appealed to the Court of Appeals. The Court of Appeals found
that the arrest was not lawful and the search incident to that
arrest "exceeded the scope of the officer’s authority." In relation
to the curfew violation the Court stated that it would not rewrite
legislation allowing a child to be taken into custody for a curfew
violation, not wishing to substitute their judgment for the legislatures.
Dress Code
The Supreme Court
has not ruled on the constitutionality of dress codes in relation
to students 1st Amendment rights. Personal appearance and clothing
may be constitutionally protected by the 1st Amendment if the
clothing conveys a religious message or the clothing coveys a
political message. It is generally not enough in the eyes of the
court for a student to object to a dress code on the basis that
it does not allow him/her to convey their individuality. The following
lists includes a few of the very numerous cases out there on dress
codes. Remember a court only must follow precedent in its jurisdiction.
Since the Supreme Court has not specifically ruled, this is generally
the District or State Supreme Court rulings.
**Moody v. Cronin,
484 F. Supp. 270 (C.D. Ill. 1979)
The US District Court ruled that
students were exempt form the gym class dress code and the gym
class itself due to religious beliefs. The students were members
of the United Pentecostal Church which has deep religious beliefs
in how one should dress.
**Domico v. Rapides
Parish School Board, 75 F. 2d 100 (5th Circuit 1982)
In this case the 5th Circuit reiterated
its past attitude about the importance of school boards protecting
a school systems educational and disciplinary needs through the
implementation of a "hairstyle regulation." This case actually
involved the school board applying the student dress code to all
employees as well as students. The court said that a school board
has a legitimate interest in "teaching, hygiene, instilling discipline,
asserting authority and compelling uniformity." It stated that
person’s appearance may have an adverse impact on the educational
process and, as such, barring any arbitrary or capricious acts,
can be regulated.
**Olesen v. Board
of Education of School Dist. No. 228, 676 F. Supp 820 (N.D. Ill
1987)
High school students brought suit
against the school district, challenging the constitutionality
of school anti-gang rule prohibiting the wearing of earrings by
males. The court upheld the high school’s anti-gang policy, saying
it did not violate the students right to free speech and expression,
since the only message was on of his individuality, which was
not within the protected scope of the 1st Amendment. The court
found nothing wrong with not allowing males to wear earrings while
allowing females to wear earrings. The court felt the gender-based
difference in classification was substantially related to the
legitimate objective of discouraging gang membership and activities.
**Broussard V.
School Board of the City of Norfolk, 801 F. Supp. 1526 ( E.D.
Virginia 1992)
A middle school student brought
an action against the school board and other related parties to
challenge their suspension for wearing a shirt that said "Drugs
Suck!" The District Court held that a one day suspension did not
violate due process and free speech rights.
**Jenglin v. San
Jacinto Unified School Dist., 872 F. Supp. 1459 (C.D. Cal. 1993)
The District Court upheld the anti-gang
dress code which prohibited clothing identifying professional
sports teams or colleges, for the high school, stating that it
did not offend the Constitution because of the threat of violence
created by the gang presence in the high school. Schools are given
a great deal of deference regarding clothing which promotes or
shows gang affiliation because most courts view gangs to be socially
problematic. If a school district can not prove a gang problem
exists, the justification for such a rule will be weak in the
eyes of the court. This court ruled at the same time that the
code violated the free speech rights of elementary and middle
school students, as no gang problems could be shown to exist at
their schools.
**Colorado Indep.
School Dist. v. Barber, 864 S.W. 2d 806 (Tex. App. Eastland 1993)
In this case male students successfully
challenged enforcement of a school dress code which prohibited
male students form having long hair or from wearing earrings.
The court felt that there were several problems with the dress
code, most significantly that the code prohibitions were discriminatory,
as they were based on sex.
**Alabama v. Coushatta
Tribes of Texas v. Big Sandy School Dist, 817 F. Supp. 1319 (E.D.
Tex. 1993)
In this case the court issued a
preliminary injunction enjoining the school from enforcing a hair
regulation against Native American students who asserted that
the maintenance of their long hair represented moral and spiritual
strength. The court found this to be a symbol of their religion
and thus it was protected as a matter of religious freedom.
**McInyre v. Bethel
School Indep. Dist. No. 3, 804 F. Supp 1415 (W.D. Ok. 1992)
In this case the school district
applied a dress code restriction to T-shirts bearing a logo considered
to be an ad for alcohol. The U.S. District Court held that the
school district failed to show that wearing the restricted clothing
would interfere with school work or school discipline. In this
case, the court held that it was very difficult to tell if the
T-shirt advertised alcohol and that the rationale for the rule
would not work in this specific situation. The standard for determining
whether the 1st Amendment requires the school to tolerate expression
is whether or not the speech would materially and substantially
interfere with the school work, school discipline or the rights
of other students.
**Hines v. Caston
School Corp., 651 N.E. 2d 330 (Ind. App 1995)
This case was brought when a ten
year old boy was suspended for wearing an earring. The trial court
ruled that the rule prohibiting the wearing of earrings by boys
did not violate the constitutional rights of the boy under the
due process and equal protection clauses of the 14th Amendment.
The court ruled that the Hineses failed to show that the earring
ban serves no purpose rationally related to the educational function
of the school, and as a result their due process challenge failed.
The court also affirmed the trial courts ruling that the Hineses
failed to show that the prohibition of the wearing of earrings
by boys violates the equal protection clause because it does not
substantially relate to a legitimate government interest.
**Pyle v. South
Hadley School Committee, 861 F. Supp. 157 (D. Mass. 1994)
In this case two high school students
sued the school committee, challenging the school’s policy which
prohibited their wearing of two T-shirts. One read "See Dick Drink.
See Dick Drive. See Dick Die. Don’t be a Dick" and the other read
"Coed Naked Band: Do It to the Rhythm". The District Court held
that school officials could restrict vulgar expression by students
regardless if their was any risk of substantial disruption, but
that a dress code which prohibits apparel which harasses violates
the students’ 1st Amendment rights. The U.S. Court of Appeals
for the 1st Circuit denied the motion to intervene and did not
disturb the district courts judgment in relation to the enjoined
enforcement of the harassment provision.
**Bivens v. Albuquerque
Public Schools, 899 F. Supp 556 (D. New Mexico, 1995)
In this case a student brought
an action against the school board, based on a claim that the
dress code prohibiting saggy pants violated students’ 1st Amendment
rights, and the procedures used in imposing the long term suspension
violated the student’s right to procedural due process The District
Court held that the wearing of saggy pants was not speech and
the dress code was not unconstitutionally vague.
Student Search
This case involves a 14 year old
freshman (T.L.O.) who was seen smoking in the bathroom by her
teacher at a New Jersey High School. The teacher took the student
to the Principal’s Office, where they met with the Vice Principal.
T.L.O. denied smoking and the Assistant Vice Principal demanded
to see her purse. When he opened the purse he found a pack a cigarettes
and some rolling papers commonly associated with the use of marihuana.
He then proceeded to search the purse thoroughly and found some
marihuana, a pipe, plastic bags, a fairly substantial amount of
money, an index card of students who owed money to the freshman
and two letters that implicated her in marihuana dealing. The
VP notified T.L.O.’s mother and the police and turned the evidence
of drug dealing over to the police. T.L.O.’s mother brought her
to the police station, where she confessed to dealing drugs. Based
on the confession and evidence the State brought delinquency charges
and T.L.O. moved to suppress the evidence found in her purse,
stating that it was tainted by an unlawful search. The Juvenile
Court denied her motion, stating that the search was a reasonable
one justified by well-founded suspicion.
The New Jersey Supreme Court reversed
the findings of the lowers courts and suppressed the evidence.
The Supreme Court reversed the judgment of the New Jersey Supreme
Court, finding that the search was reasonable. The Supreme Court
ruled that students in school enjoy 4th Amendment protections
against unreasonable searches of their persons and property. The
Court found that school authorities act as public officials, not
private citizens, when they search students and such searches
are, therefore, limited by the 4th Amendment. The Court did not
apply the usual 4th Amendment requirements that before searching
a citizen a government official must have a warrant signed by
a judge or the express consent of the person being searched to
student searches. They said the warrant requirement would "unduly
interfere with the maintenance of the swift and informal disciplinary
procedures needed in schools."
The Court ruled that a school official can search a student "when
there are reasonable grounds for suspecting that the search will
turn up evidence that the student has violated or is violating
either the law or the rules of the school. Such a search will
be permissible in its scope when the measures adopted are reasonably
related to the objectives of the search and not excessively intrusive
in light of the age and sex of the student and the nature of the
infraction." The search must pass a two part test: (1) the school
official must have good reason to believe evidence of wrongdoing
will be found, (2) the search must not be more intrusive than
necessary to find the item the school expects to find.
**In the Interest
of Isiah B. 500 N.W. 2d 637 (Wis. 1993)
This case involves the constitutionality
of the random locker search under the 4th Amendment nd Article
I, sec. 11 of the WI Constitution. In this case the court looked
at circumstances leading up to the search, which included a series
of gun-involved complaints and verified presence of guns in two
of the incidents. In addition, the weekend before the search two
incidents occurred which involved gun fire on the school premises.
The following Monday (the day the search in question occurred),
the atmosphere at the school was full of tension and fear. There
were reports of guns being present at the school and rumors that
a shoot out was inevitable that school day. Some staff members
and students requested to leave school out of fear for their safety.
Because of the existing circumstances
the principal ordered security to begin a random search of student
locker as a preventive measure while investigative interviews
continued, to find out who was in possession of guns Although
the principal did not indicate that the search was entirely random,
the testimony showed in to be extremely vague. The court also
noted that the Milwaukee Public School (MPS) Handbook indicated
that the lockers were the property of the school and subject to
inspection as determined necessary or appropriate. The school
also had pass keys for all the lockers, and students were not
allowed to put their own locks on the lockers. Approximately 75-100
lockers were searched prior to the school arriving at Isiah B’s
locker. The school officials had no particularized or individualized
suspicion that his locker would contain evidence of a violation
of the law or school rule. Isiah B. did not have a history of
weapon violations nor was he suspected of being involved in the
recent gun incidents.
A security guard removed Isiah B’s
coat and found it to be unusually heavy and then patted down the
exterior. He felt a hard object, which he believed to be a gun,
he then observed the handle of a gun in the coat by pulling open
the pocket. He also noticed cocaine under the gun After this he
notified the principal who brought the coat to the principal’s
office and met with Isiah B. there. Isiah B. when confronted with
the coat admitted that there was also cocaine in the coat.
The WI Supreme Court concluded that
under the circumstances present at the school on that date the
random search of the locker was permissible under the US and WI
Constitutions, affirming the judgment of the circuit court.
Brian Cornfield was enrolled in
a behavior disorder program at the Carl Sandburg High School.
A teacher’s aide found him violating a school rule when he was
outside the building. When she told others at the school about
the violation, she also told them that he appeared to be too well
endowed. Another teacher’s aide confirmed her observation. The
following day Cornfield was taken aside while boarding the bus
to go home after Cornfield’s teacher believed he may be "crotching"
drugs and asked him to come to the office. When confronted Cornfield
grew disturbed and began yelling obscenities. At Cornfield’s request
the school called his mother, who refused to consent to a search
of her son. The two staff members proceeded with the search in
which they escorted Cornfield to the boys’ locker room to conduct
a strip search. They had Cornfield remove his clothing while they
stood away from him (one approximately 10-12 feet away, the other
about 15 feet away), then they visually inspected his naked body
and physically inspected his clothes. They did not conduct a body
cavity search. The two staff members found no drugs or any other
contraband and they took Cornfield home after the search.
The 7th Circuit upheld the constitutionality
of a strip search of a male student conducted by two staff members.
They found that the two staff members formed a reasonable suspicion
from a combination of several corroborating statements about a
significant bulge and Cornfield’s previous comments to his teacher
about the usage and dealing of drugs. They noted that "as the
intrusiveness of the search of a student intensifies, so too does
the standard of the 4th Amendment reasonableness."
Angelia D. B. was charged with
carrying a concealed weapon contrary to Wis. Stat. Sect. 481.12
and 941.23 (1993-94), after a school liaison police officer found
a 9 inch knife hidden in her clothing. The Circuit Court of Winnebago
County suppressed the knife and all derivative evidence obtained
form Angelia D.B. after concluding that the search violated her
state and federal constitutional rights to be free from unreasonable
searches and seizures.
On appeal the Wisconsin Supreme Court
reversed and remanded the case. The WI Supreme Court held that
it is permissible for school officials who have a reasonable suspicion
that a student may be in possession of a dangerous weapon on school
grounds to request assistance of a school liaison officer or other
law enforcement officials in conducting a further investigation.
They concluded that although T.L.O. did not address this specific
issued, "that the application of the T.L.O. reasonable grounds
standard and not probable cause, to a search conducted by a school
liaison officer at the request of and in conjunction with school
officials of a student reasonably suspected of carrying a dangerous
weapon on school grounds in consistent with both the special needs
of public school recognized in T.L.O. and with the decisions by
courts in other jurisdictions." The Wisconsin Supreme Court concluded
that the search was reasonable under the circumstances, and the
circuit court erred in suppressing the knife and all derivative
evidence.
This case is an appeal of the District
Court’s granting of summary judgment to the defendants on the
4th Amendment and Invasion of privacy claims. It stems from a
search of Andrew Bridgman when he was a freshman in 1995. He was
attending a smoking cessation program after having been caught
smoking at school a number of times. During the class him and
some of the students were laughing and Dailey, the Student Assistant
Program Director who was supervising the program, stated he
was unruly. This was denied by Bridgman. Dailey stated she noticed
that Bridgman’s eyes were bloodshot and his pupils dilated, and
she also thought his handwriting was erratic. Because of this,
she became suspicious that he was using marijuana, took him into
another room and accused him of being under the influence of drugs.
He then asked to call his mother. After he spoke to his mother
Dailey had the school nurse administer a "medical assessment"
of Bridgman. The assessment concluded that his blood pressure
and pulse were considerably higher than those on his freshman
exam record and that his eyes were dilated. The nurse did not
notice that his eyes were bloodshot or that he was under the influence
of drugs. After the exam Dailey had him remove his outer jersey,
his hat, his shoes and socks and empty his pockets and she then
searched the items. Bridgman’s mother than arrived and took him
to a pediatrician who determined that he had not been using marijuana.
His mother filed an action against the school, alleging that the
school violated his 4th Amendment rights and his right to privacy.
The District Court granted the School’s motion for summary judgment.
The 7th Circuit affirmed the District
Court’s ruling stating that the District Court correctly concluded
that the ordering of the medical assessment and the reasonableness
of the search was appropriate in light of Dailey’s experience
as a certified drug addiction counselor, along with publications
she produced suggesting that a respectable segment of medical
opinion supports her interpretation of his systems. The Court
also agreed with the District Court’s conclusion that the search
was not excessively intrusive.
Student Clubs-Right
to Access
The Court ruled that when a public
high school allows student religious groups to meet outside of
school hours on the same basis that non-religious extracurricular
groups are allowed to meet, it does not violate the Establishment
Clause.
Drug Testing
in School
This decision gave school districts
broad rights to test student athletes for drug use. It is about
James Acton, a 7th grade student who tried out for the football
team. He and his parents refused to consent to the drug testing.
Acton was subsequently suspended from interscholastic athletics
for the season and the Actons filed suit against the school district.
They claimed that the drug testing policy violated James’ right
to be free from unreasonable government searches.
The Supreme Court overturned the
9th Circuit ruling that held the policy of testing student athletes
for drugs violated the students right to be free from unreasonable
government searches under the 4th Amendment and the Oregon Constitution.
The Court held that public school students enjoy diminished constitutional
rights. The Court felt this was true in regard to medical examinations
and procedures. It noted that students have decreased privacy
rights, noting that schools are often responsible for vaccinating
and screening for hearing and scoliosis.
The Supreme Court stated that student
athletes have lower privacy expectation, as school locker rooms
by their very nature are open. It also stated that, "In the present
case, moreover, the necessity for the state to act is magnified
by the fact that this evil is being visited not just upon individuals
at large, but upon children for whom it has undertaken a special
responsibility of care and direction." In response to the idea
of suspicion based testing the court felt that this may be worse,
not better. It noted that this option was fraught with difficulties
and noted the practice could result in lawsuits challenging the
searches and it would require untrained teachers to identify drug
users.
The Court did set some guidelines,
in that the schools must ensure chain of custody and confidentiality
of the tests. The collection monitors should be the same sex as
the students providing the urine and should not view the act of
urination. If a student must provide information regarding use
of prescription medication, this should also be kept confidential
and it is best only to request such information from the student
after a positive result. It also stated that there must be a due
process procedure for a student who wishes to challenge the result
of the test finding.
Religion/School
Prayer
In the late 1960’s, in Green County,
Wisconsin school officials took 3 Amish men to court because they
refused to send their 14 and 15 year old children to local high
schools. The men were convicted of violating the compulsory attendance
laws and fined. The men appealed to the Wisconsin Supreme Court,
arguing that their right to freedom of religion under the 1st
Amendment had been violated. The men won, but the State of Wisconsin
then appealed to the U.S. Supreme Court.
The Supreme Court noted that states
do have a genuine responsibility for educating their citizens.
The court said that the state’s interest was not totally free
from a balancing process when it encroaches on another fundamental
right. The Court noted that the religious convictions of the Amish
affect all aspects of their lives and that these religious values
would be threatened if Amish children were forced to attend public
high school. The values and programs of the modern secondary schools
conflict with the fundamental mode of life mandated by the Amish
religion. The Court overall ruled that the enforcement of mandatory
compulsory attendance law would greatly jeopardize if not destroy
the free exercise of the religious beliefs of the Amish.
In this case the Court developed
a three step analysis to test whether state laws or programs unconstitutionally
infringe upon students’ free exercise of their religious beliefs.
The three steps are: (1) Is the affected activity rooted in a
legitimate and sincerely held religious belief? (2) Have the parties’
free exercise of religion been burdened by the regulation or state
action? What was the impact on their religious practices? (3)
Does the state have a compelling interest in the regulation which
justifies restricting the free exercise of religion?
This case came about when a 4th
grade requested permission to hand out invitations to a religious
meeting to be held at his family’s church and was prohibited on
the grounds that the activity violated the school district’s Code
of Student Responsibility. His parents then brought suit in federal
court seeking declarative and injunctive relief. The district
court declared the school a non-public forum and upheld the validity
of all of the challenged code except a requirement that the handout
contain a disclaimer stating that the handout was not endorsed
by the school. The 7th Circuit reversed this ruling only on the
disclaimer issue only (stating the disclaimer requirement was
not unconstitutional), and affirmed the rest of the decision.
Book Censorship
This case came about when a school
board tried to remove books from the school library. The opinion
was based on 3 points: (1) the student’s right to receive ideas
is predicate to the student’s exercise of his/her own rights to
free speech, press and political freedom; (2) that school officials
can’t suppress ideas which they don’t wish to assert; and (3)
that the school library is the principal point of convergence
for free inquiry and study and is protected by the 1st Amendment.
The Supreme Court held that school officials may not remove books
from a school library or from the curriculum based upon the viewpoint
expressed. It also stated that school officials must follow a
policy for book challenges before any books are removed because
they are inappropriate for the school level.
Speech Code/Hate
Speech
The defendant in Mitchell, a black
teenager, was convicted of aggravated battery. This crime would
generally carry a maximum sentence of 2 years in WI. However,
in this case there was strong evidence that the defendant had
selected his victim on the basis of race. Under the WI statute,
the maximum sentence for aggravated battery was increased to 7
years. The Supreme Court unanimously held that this penalty-enhancement
scheme did not violate the defendants 1st Amendment rights. The
Court relied heavily on the distinction between speech and conduct
when issuing its opinion. In response to the defendant’s argument
that the penalty enhancement was no more constitutionally acceptable
that the ban in R.A.V., the Court stated that the ordinance in
the R.A.V. decision was explicitly directed at expression, whereas
the statute in this case was aimed at conduct that was completely
unprotected by the 1st Amendment.
The defendant and several other
teenagers allegedly burned a homemade cross inside the fenced
yard of a black family in the middle of the night. The defendant
was prosecuted under the St. Paul "Bias-Motivated Crime Ordinance,"
which provided that "whoever places on public property a symbol,
object, appellation characterization or graffiti, including but
not limited to, a burning cross or Nazi swastika, which one knows
or has reasonable grounds to know arouses anger, alarm or resentment
in others on the basis of race, color, creed, religion or gender
commits disorderly conduct and shall be guilty of a misdemeanor."
Defendant contended that the ordinance violated the 1st Amendment
in two respects: it was substantially overbroad; and it was impermissibly
content based.
The Supreme Court unanimously concluded
that the ordinance, on its face, violated the 1st Amendment. They
split on the rationale for this decision.
Five Justices concluded the law was
impermissibly content-based because "it prohibits otherwise permitted
speech solely on the basis of the subjects speech addresses".
They held that even when the government is regulating a supposedly
"unprotected" category, it may not do so in a content-based manner
Justice Scalia who authored the opinion, stated that the ordinance
was not necessary to achieve a state interest because there were
adequate content-neutral alternatives.
The concurrence written by Justice
White stated that where a category is unprotected the states are
not prevented from regulating on the basis of content. White’s
concurrence stated that the case should have been decided on overbreadth
grounds, in that the ordinance reached both protected and unprotected
speech.
Expulsion/Suspension
The Supreme Court held that students
must be afforded some due process before their suspension from
school, even for short periods of time. The Court reasoned that
even a short suspension took away the student’s property right
to attend school and the liberty right to maintain one’s good
name. Therefore the Court sought to reduce the likelihood of faulty
suspensions by ensuring that the right party was expelled. The
Supreme Court held that the principal or suspending officer shall
provide the student with written or oral notice of the charges,
the basis or evidence for the charges, and a minimum of an opportunity
to deny them.
Note that if expelled
or suspended for more than 3 days Wisconsin law requires an optional
hearing in front of the school board where the suspended or expelled
student can be represented by a lawyer, confront and questions
his accusers and present witnesses of their own. In addition they
are entitled to a full copy of the required transcript should
they wish to appeal the decision of the board.
Subversive (Rebellious)
Advocacy
The defendants were prosecuted
for violating the 1917 Espionage Act when they conspired to have
printed and circulated to men who had been called to military
service a document that argued the draft violated the 13th Amendment.
The Supreme Court upheld the prosecutions by applying a clear
and present danger test. The Court admitted that in many places
and in ordinary times the defendants actions would have been constitutionally
protected. The court felt the appropriate measure was looking
at the proximity and degree of the actions when deciding if they
created a clear and present danger. If they did, prosecution could
be upheld, if they did not the defendant was exercising their
free speech rights.
Gitlow was arrested for the crime
of criminal anarchy under NY penal law for advocating the overthrow
of the government in writings called "the Left Wing Manifesto"
and "The Revolutionary Age". The Supreme Court upheld the arrest,
although there was no clear and present danger.
The Supreme Court held that the
Criminal Syndicalism Act of CA did not violate the 1st Amendment
and therefore upheld the conviction of Whitney who was found in
violation of the Act for being a member of the Communist Labor
Party and attending a convention at which a resolution was adopted
advocating militant action. The majority opinion held that mere
knowing membership in an organization advocating criminal syndicalism
was substantively dangerous and must be given great weight. The
case was later overruled by Brandenburg v. Ohio.
Clarence Brandenburg was convicted
of violating the Ohio criminal syndicalism statute for advocating
racial strife during a Ku Klux Klan rally. The statute was identical
to the one upheld in Whitney. However, here the Supreme Court
overturned the statute, and created a new heightened clear and
present danger test in which speech could be punished ONLY if
such advocacy is directed to inciting or producing imminent lawless
action and is likely to produce such action. By requiring an actual
empirical finding of imminent harm, this test protected the advocacy
of lawlessness except in unusual circumstances.
**Hess
v. Indiana, 414 US 105 (1973)-war protester
A campus war protester was arrested
for saying, "we’ll take the fucking street later," when dispersed
by police. The State Court relied on a finding that the statement
was intended to incite lawless action and was likely to produce
such action. The Supreme Court reversed: "at worst, the statement
amounted to nothing more than advocacy of illegal action at some
indefinite future time… since there was no evidence, or rational
inference from the import of the language, that his words were
intended to produce, and likely to produce, imminent disorder,
those words could not be punished by the state. . ."
Freedom of Association
& Assembly
**Lawrence University
Bicentennial Commission v. City of Appleton, 409 F. Supp. 1319
(E.D. Wis. 1976)
This case involved a group of students
who applied for permission to rent the Appleton High School West
gym to host a public lecture by Angela Davis. Their application
was not approved by the Board of Education (4 to 2 vote), as the
school policy stated that school buildings were not to be used
for religious or political activities unless the activity is nonpartisan
or nondenominational. The group argued that Davis’ lecture was
to be nonpartisan and nondenominational in nature and that the
school board had allowed other groups like the League of Women
voters to assemble in the building and have candidates give political
speeches. There was no evidence presented to the board that Davis’
lectures had in the past resulted in violence and disruption or
that this speech would cause such a reaction.
The District Court ordered that the
student association be permitted to use the school’s gym for the
lecture and found fault with the use of the words political and
religious in the board’s policy, saying it was regulating speech
on the basis of content, which the school is not allowed to do.
The District Court did not remove the ability of the school to
control the use of the building by groups but clarified the limits
to this right. The opinion held that once a school opens its doors
it can not regulate admission through form of conviction and affiliation.
**Fricke v. Lynch,
491 F. Supp. 381 (D.R.I. 1980)
This case resulted from a complaint
of a male homosexual student (Fricke) who had asked for and was
denied the principal’s permission to bring a male date to the
senior dance. His second request took place at a meeting where
he explained to the principal that he was committed to homosexuality.
The principal denied his request in writing, stating his prime
concern to be a fear of disruption. The principal’s fear was not
unfounded as Fricke had previously been attacked and in the past
a male student who brought a male escort to the dance was harassed
verbally and physically. The District Court focused on Fricke’s
1st Amendment claims when deciding this case, recognizing the
balance necessary in situations where the 1st Amendment rights
of the students and the need to avoid conduct materially and substantially
disruptive to the school. The Court concluded that a violent reaction
is not adequate reason to suppress such speech in advance. In
this case the court could not see where any disturbance would
hinder the main business of the school, as no classes would be
disrupted the court felt that Fricke’s conduct was peaceful and
that any disturbance would be caused by other students who resort
to violence. The court also stated that school have an obligation
to take measures to protect and nurture free speech.
Freedom of Speech
/ Student Press
Several high school and junior
high students were suspended for wearing black armbands as a symbol
of opposition to the War; a rule forbidding the wearing of such
armbands had been adopted by school officials 2 days before, in
anticipation of the protest. The Supreme Court held that the prohibition
on armbands violated the students’ 1st Amendment rights. What
was being suppressed was not actual or potentially disruptive
conduct, but rather something that was nearly "pure speech." The
majority opinion states that "undifferentiated fear or apprehension
of disturbance is not enough to overcome the right to freedom
of expression." The school’s argument was diminished by the lack
of content neutrality in the school officials’ conduct, as it
was shown that the school did not prohibit all political or controversial
symbols. The Court also did note that if the students’ act "materially
and substantially interfere[d] with the requirements of the appropriate
discipline in the operation of the school," the officials would
have been justified in preventing it.
The Supreme Court upheld a school
principal’s decision to remove 2 articles from the student newspaper.
One article was a story describing 3 students’ experience with
pregnancy and the other was a story discussing the impact of divorce
on students at the school. The principal believed that the story
about pregnancy might indirectly identify the students and that
its references to sexual activity and birth control were inappropriate
for some of the younger students. The second article the principal
saw in draft form, identified a student who blamed her father
for her parents’ divorce. The article did not have a response
from the father and the principal felt this unfairly denied the
right of the father to respond.
The Supreme Court held that where
a school sponsors an activity, in such a way, that students and
others may reasonably perceive the activity as bearing on the
school’s imprimatur, the school’s right to restrict student speech
is much greater than in the Tinker case. Applying the "reasonable
relation" test, the majority found that the principal acted reasonably,
based on the facts as the principal then knew them. The suppression
of the articles was reasonably related to the school objectives
of protecting privacy, shielding young students from inappropriate
subjects, and teaching journalistic fairness.
The dissent, (Justices Brennan, Marshall
and Blackmun), contended that the Tinker standard should be applied
even when student expression occurs during the course of school
sponsored activity. The dissent stated, "The mere fact of school
sponsorship does not. . . license such thought control in the
high school, whether through school suppression of disfavored
viewpoints or through official assessment of topic sensitivity."
After the Hazelwood ruling there
are few real restrictions on the administrators’ right to censor
student expression that occurs during the course of a school sponsored
activity. The administrator will almost always be able to establish
that the censorship was reasonably related to some legitimate
pedagogical interest. Some states have adopted so called Anti-Hazelwood
legislation, granting students free expression rights.
In this case a high school student
was suspended and removed as a candidate for commencement speaker
after giving a speech at a high school assembly that the school
authorities found to be lewd. The speech was made in support of
a candidate for a student government office, and contained an
elaborate sexual metaphor(e.g., "Jeff Kuhlman is man who takes
his point and pounds it in. . . He doesn’t attack things in spurts-he
drives hard, pushing and pushing until finally-he succeeds.")
The Supreme Court upheld the disciplinary actions, "the undoubted
freedom to advocate unpopular and controversial issues in schools
and classrooms must be balanced against the society’s countervailing
interest in teaching students the boundaries of socially appropriate
behavior." In this case, the school’s interest in prohibiting
"vulgar and lewd speech" outweighed whatever 1st Amendment interests
the student might have had, especially since the penalties were
not related to any political viewpoint.
**Fujishima v.
Board of Educ., 460 F2d 1355 (7th Cir. 1972)
Three students were suspended for
distributing literature or leaflets without prior approval. The
court said it was unconstitutional to have a rule which required
administrative approval of student publications. The 7th Circuit
Court of Appeals said a school could have reasonable regulations
governing the time, place and manner of distributing written materials
and it could discipline students who violated these rules. However,
the school board would have to inform students of any rules regarding
time, place and manner of distribution and it could not require
the students to apply for approval of time, place and manner each
time they wished to distribute something.
**UWM Post, Incorporated
v, Board of Regents of the University of Wisconsin System , 774
F. Supp 1163 (E.D. Wis. 1991)
This was a challenge brought to
the University system’s rule prohibiting students from directing
discriminatory epithets at particular individuals with intent
to demean them and create a hostile educational environment, The
District Court held that the rule was overbroad and unduly vague,
it did not meet requirements of fighting words doctrine and the
court would not apply limiting construction urged by university.
The District Court concluded that content-based prohibitions such
as that in the UW Rule, however well intended, simply cannot survive
the screening which our Constitution demands. The court ordered
that the Board of Regents and its agents and employees are permanently
enjoined from enforcing the UW Rule and is required to vacate
the disciplinary action taken against plaintiff John Doe under
the UW rule and to expunge from his file all records related to
the action.
Equality in
Education
The state laws of Kansas, South
Carolina, Virginia, and Delaware mandated that public schools
be segregated according to race. The Supreme Court held that segregation
was unconstitutional even when the schools were "separate but
equal". The Court held that: "today, education is perhaps the
most important function of state and local governments…. It is
the very foundation of good citizenship… segregation of white
and colored children in public schools had a detrimental effect
upon colored children. The impact is greater when it has the sanction
of the law; for the policy of segregating the races is usually
interpreted s denoting the inferiority of the Negro group. A sense
of inferiority affects the motivation of the child to learn… We
[therefore] conclude that in the field of public education the
doctrine of ‘separate but equal’ has no place."
Texas law denied school-aged children
of undocumented aliens the free public education it provided to
citizens and children of legally admitted aliens. The Supreme
Court held that the denial of education to undocumented aliens
violates the equal protection clause. Brennan, writing the majority
opinion offered more of a cost benefit analysis than an constitutional
one, stating: "we cannot ignore the significant social costs borne
by our nation when select groups are denied the means to absorb
the values and skills upon which our social order rests." Although
aliens are not a suspect class, nor is education a fundamental
right, the Court applied strict scrutiny to strike the law down.
Equal Protection/Gender
Classifications
The state of Oklahoma statute prohibited
the sale of 3.2% beer to males under the age of 21, but allowed
the sale to females over 18. The Supreme Court held that the statute
violated the Equal Protection clause. Justine Brennan laid out
the intermediate scrutiny test to be used in gender classification
cases. He wrote:
To withstand constitutional challenge,
previous cases establish that classifications by gender must
serve important governmental objectives and must be substantially
related to achievement of those objectives.
California law made statutory rape
a crime for the male participant, but not the female. The Supreme
Court held that the statute was constitutional under the Equal
Protection Clause. Judge Rehnquist stated:
"because equal protection does not
require things which are different in fact to be treated in
law as though they were the same, this Court has consistently
upheld statutes where the gender classification is not invidious,
but rather realistically reflects the fact that the sexes are
not similarly situated in certain circumstances."
The Supreme Court upheld a federal
law requiring the registration of males for the draft, but not
females. Judge Rehnquist wrote:
"Men and women, because of the combat
restrictions on women, are not similarly situated for purposes
of a draft or registration of a draft."
The Supreme Court overturned Mississippi’s
policy of excluding men from the university’s school of nursing,
finding it did not pass the intermediate scrutiny test. Here the
Court felt that the men and women were similarly situated and
thus should be treated the same.
Alabama courts had allowed gender-based
peremptory challenges to jurors by the prosecution. The Supreme
Court held that such peremptory challenges were unconstitutional
under equal protection. Judge Blackmum stated, "hen state actors
exercise peremptory challenges in reliance on gender stereotypes,
they ratify and reinforce prejudicial views of the relative abilities
of men and women."
Equal Protection-Race
Based Classifications
Bakke was an applicant for the
University of CA Medical School at Davis. Davis had a program
which was designed to foster greater diversity in its admissions
by setting aside sixteen slots for minorities. Bakke, a white
male was denied admissions and challenged the constitutionality
of the program on equal protection grounds. The Supreme Court
was divided, with the majority holding that Davis’ specific program
was unlawful, partly under Equal Protection and partly under Title
VI of the Civil Rights Act. But, the Court held that Davis could
take race into consideration as one factor in admissions.
**Hopwood
v. Texas (1994, cert denied US Supreme Ct. 1996)
In 1992 Cheryl Hopwood and Stephanie
Haynes filed a reverse discrimination suit in U.S. District Court.
Both said they were denied admission to UT Law School, even though
they possessed the necessary academic requirements, because they
were not black or Hispanic. That year statistics from the 1992
entering class at UT showed that resident African-Americans and
Hispanic students were admitted with lower GPA and LSAT standards
than non-minority applicants according to an internal law school
memorandum. In addition, the percentage of the two minority groups
was nearly constant since 1988. Ms. Hayes later dropped her name
from the lawsuit.
In 1994 U.S. district Judge Sam Sparks
ruled that the 1992 admissions policy discriminated against the
plaintiffs, but allowed the University to continue affirmative
action, saying: "it is regrettable that affirmative action programs
are still needed in our society, however, until society sufficiently
overcomes the effects of it lengthy history of pervasive racism,
affirmative action is a necessity."
In March of 1996 the 5th Circuit
ruled that the affirmative action programs at the school are unconstitutional.
In 1996 the US Supreme Court denied certiorari to the case.
Reproductive
Freedom
The Supreme Curt held that a woman’s
right to privacy is a "fundamental right" under the 14th Amendment.
Therefore, the legislature has only a limited right to regulate
and may not completely proscribe abortions. The Court’s opinion
divided pregnancy into 3 trimesters, and prescribed a different
rule for each. In the first trimester a state may not ban or closely
regulate abortions. The decision to have an abortion, and the
manner in which to is to be carried out is completely left to
the woman. In the second trimester the state may protect its interest
in the mother’s health by regulating the abortion procedure in
way that are reasonably related to her health. An example of a
regulation would be requiring an abortion take place in a hospital
instead of a clinic. A state may protect only the mother’s life,
not the fetus’ life, during the second trimester. During the third
trimester the Court felt that the fetus typically becomes "viable",
"viable" means that it has the capability of a meaningful life
outside the womb. During the third trimester the state has a compelling
interest in protecting the fetus, and may therefore may regulate
or proscribe abortion. However the state must allow an abortion
to be permitted when it is necessary to preserve the health or
life of the mother.
At issue in this case was the Pennsylvania
statute which placed a number of restrictions on abortion. Some
of the restrictions were a requirement that the woman wait for
24 hours after receiving from a doctor information on abortion
before having an abortion. The woman was also required to notify
her husband if she was married. The Supreme Court opinion that
is considered the law of the land is the joint opinion that was
written by Justices O’Conner, Souter and Kennedy. The opinion
stated that it was reaffirming the central holding of Roe, although
important aspects of Roe, including that of abortion being a "fundamental
right" and the trimester framework were overturned. The Court
considered the central holding of Roe to consist of 3 parts: (1)
a recognition of the "right of woman to chose to have an abortion
before viability and to obtain it without undue interference from
the state; (2) a confirmation of the State’s power to restrict
abortions after fetal viability, if the law contains exceptions
for pregnancies which endanger the woman’s life or health; and
(3) a recognition of the state’s "legitimate interests from the
outset of the pregnancy in protecting the health of the woman
and the life of the fetus…" All aspects of the Pennsylvania statute,
(informed consent, parental consent, and record keeping), were
upheld as not being unduly burdensome except for the spousal notification.
As a result of this case, states may restrict abortion so long
as they do not place an "undue burden" on the woman’s right to
chose.
Birth Control
In this case the Court struck down
a NY statute which prohibited anyone but a licensed pharmacist
from distributing contraceptives to persons over 16 and entirely
prohibited the sale or distribution of contraceptives to minors
under the age of 16, except by prescription. The court evaluated
the rule that applied to adults to strict scrutiny as it bore
on the fundamental right to decide whether or not to procreate.
Since this limit reduced access to contraceptives and lessened
price competition the restriction had to be justified by a compelling
state interest. The interests argued by the stated were not compelling
and that part of the rule was struck down. The ban on sale minor
was struck down because it did not serve any significant state
interest, the state’s argument that sexual activity by minors
would be deterred by the ban was not convincing. Some of the Justices
even felt that it was an irrational means of deterring sexual
activity as it increased the risk of pregnancy and venereal disease.
BY NO MEANS
SHOULD YOU CONSIDER ANYTHING ON THIS PAGE TO BE LEGAL ADVICE OR
USE IT IN PLACE OF CONSULTING AN ATTORNEY. THIS PAGE IS PURELY
FOR REFERENCE PURPOSES.
Links
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