Introduced by James Madison in 1789.Introduced by James Madison in 1789. Adopted in 1791.Adopted in 1791. First 10 amendments to the Constitution.First

• Introduced by James Madison in 1789.

• Adopted in 1791.• First 10 amendments to the

Constitution.• Guarantees individual rights

and protections.• States what government

CAN NOT do to people.• Influenced by Magna Carta,

English Bill of Rights, Virginia Declaration Rights.

The Bill of RightsWhat, Why and When

Amendment IFreedom of Religion, Speech, Press,

Assembly, PetitionCongress 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 grievances.

Amendment I• Also referred to as Freedom of Expression!

Amendment I

• Establishment of religion;

• Free exercise of religion;

• Freedom of speech;

• Freedom of press;

• Peaceably assemble;

• Petition the government.

Amendment IRight to Assemble

WTO 1999 Seattle, Washington

World Trade Organization

Protestors –vs.- Police












• Controversy over the city's response to the protests resulted in the resignation of Seattle police chief Norm Stamper.

• On January 16, 2004, the city settled with 157 individuals arrested outside of the no-protest zone during the WTO events, agreeing to pay them a total of $250,000. On January 30, 2007, a federal jury found that the City of Seattle had violated protesters‘ constitutional rights by arresting them without probable cause or hard evidence.

• The massive size of the protest pushed the city of Seattle $3 million over their estimated budget of $6 million, partly due to city cleanup and police overtime bills. In addition, the damage to commercial businesses from vandalism and lost sales has been estimated at $20 million.

Establishment Clause

&

Free Exercise Clause

“Freedom of Religion”

Establishment Clauseand


• Establishment Clause – Government may not establish an official religion

• Free Exercise Clause – Government is prohibited from interfering with religious beliefs and practices within limits.

Establishment Clause&


• Parochial – religious

• Secular – non-religious

• Freedom of thought – (not limited)

• Freedom of action – (limited)

• Separation of Church & State – “Very Gray”

Establishment Clause&


• Compelling state interest – Very important legal standards that allows the government to burden religious practices if found unsafe.

(safety, national security, saving multiple lives)


http://www.youtube.com/watch?v=xADKtEHjixI

http://www.youtube.com/watch?v=xADKtEHjixI


• Abington v. Schempp (1956) – prayer

• Engel v. Vitale (1962) – Official school prayer

• Lynch v. Donnelly (1984) – holiday display including “Season Greetings”, Santa, or a tree.

Abington Township School District vs.

Schempp

• 1956, 16-year-old Ellery Schempp protested school's mandatory prayer.

• Ejected from class.

• Sued the school district.

• Supreme Court banned school-sponsored school prayer.


• Five Cases:– West Virginia Board of Ed v. Barnette (1943)

– Welsh v. U.S. (1970)

– State of Wisconsin v. Yoder (1972)

– Oregon Employment Division v. Smith (1990)

– Church of Lukumi Babalu v. Hialeah (1993)

– West Virginia Board of Ed v. Barnette: 6-3

The Free Speech Clause protects students from being forced to salute the flag

– Welsh v. U.S.: 5-3

The term religion is broad and can apply to even objectors not affiliated with a church or a common religious faith.

– Yoder vs. State of Wisconsin: 7-0

Individual rights outweighed the state interests according to the Free Exercise Clause.

– Oregon Employment Division v. Smith: 6-3

Oregon could deny unemployment benefits to a person fired for the use of peyote even though the use of the drug was part of religious ritual.

– Church of Lukumi Babalu v. Hialeah: 9-0

The city was found in violation of the Free Exercise Clause. The church could practice as they pleased.

Amendment IFreedom of Speech

http://www.youtube.com/watch?v=u7ZeF5DlUok

Flag Burning



What are your thoughts on flag burning as a part of American’s freedom of expression?

Do you believe the 1,000,000+ soldiers that have been killed in American wars died so people would have the right to burn the flag?

Freedom of Speech Tinker v Des Moines (1969)

. • John Tinker (15) and Beth Tinker (13) along with some

of their friends wore black arm bands to protest the Vietnam War

• They were all suspended from school.

Amendment IFreedom of “Expression”

First Amendment applies to schools.

Reason not constitutionally valid to regulate speech.

Tinker test – does school’s disciplinary action violate student’s 1st Amendment rights?

Distinction – Does it interrupt the educational process?

Amendment IViolations of Free Expression

• Tinker was all about freedom of expression.

– Students merely wore black arm bands. – They did not disrupt school activities in any other

way. – The actions of the students are often used to

distinguish the right of speech and expression for students from the rules that can govern those rights.

– The distinction hinges on the impact of the expression on the educational process.


Dress codes that prohibit certain kinds of dress have not been challenged at the level of the Supreme Court, but have generally been upheld as promoting the educational process.


• Court overturned a conviction of a man who wore a jacket with the words "F___ the Draft" on it.

• Court ruled that the presence of a printed vulgarity cannot be sufficient cause for an arrest and 30-day imprisonment.

Cohen v California (403 US 15 [1971])


• “Absent a more particularized and compelling reason for its actions, the State may not, consistently with the First and Fourteenth Amendments, make the simple public display here involved of this single four-letter expletive a criminal offense.“

• Cohen was not a student and the jacket was not displayed in a school.

Cohen v California (403 US 15 [1971])


• Two male Pawnee Indian students were suspended from school for wearing long hair in the tradition of their ancestors.

• The suspension was for violation of a school rule which forbade the wearing of hair that extended past the collar or ears.

New Rider v Board (414 US 1097 [1973])



The Court refused to hear the case, but Supreme Court Justices Douglas and Marshall both wrote a very harsh criticism of the school rule.


"Petitioners were not wearing their hair in a desired style simply because it was the fashionable or accepted style, or because they somehow felt the need to register an inchoate discontent with the general malaise they might have perceived in our society.

They were in fact attempting to broadcast a clear and specific message to their fellow students and others - their pride in being Indian."



• Student speech off campus can be suppressed by school administrators if the speech promotes illegal activity

• Student erected a banner along the Olympic torch route. The route was flanked by students from his high school. Principal saw the banner, had it removed and suspended students because the banner ran counter to the school's anti-drug themes and policies.

Morse v Frederick (06-278 [2007])


"Student speech celebrating illegal drug use at a school event, in the presence of school administrators and teachers, thus poses a particular challenge for school officials working to protect those entrusted to their care from the dangers of drug abuse."

Morse v Frederick (06-278 [2007])

The Bill of Rights

Board v Barnette (319 US 624 [1943]) Supreme Court ruled that students could not be forced to salute the flag against their will.

Public school students do not set aside their constitutional rights - the Court uses a balancing test.

Amendment IViolations of Free Speech

Bethel School v Fraser (1986) –

Senior Matthew Fraser of Spanaway, Washington gave a suggestive nomination speech. Matthew Fraser was suspended and not allowed to speak at his graduation.

The Supreme Court ruled that a school was not violating a students rights when it suspended a student for the use of crude language in a speech to a school assembly.

Supreme Court upholds discipline – violation of school policy against disruptive behavior.

Amendment IViolations of Free Press

• The Supreme Court has held that schools and school administrators can censor student publications such as student newspapers.

• Difference between tolerance of expression and promotion of student views is the key.

• By wearing an arm band, a student is expressing his view and the school is not taking a stand, nor endorsing the student.


• In Hazelwood School v Kuhlmeier (484 US 260 [1988])

• Supreme Court ruled articles in the school paper that were counter to the educational mission of the school were subject to censorship.


Though untested in court, it is probably true that students are protected in publication of "underground" newspapers, and perhaps web pages, but the distribution of those papers or use of school computers to view web pages could be restricted.

The Bill of Rights Exceptions

Generally, the Constitution applies equally to everyone, regardless of age, color, race, religion, or other factors.

The Bill of Rights Exceptions for Minors

• Some rights can be suppressed because of:– Immaturity– Children attending

school

The Bill of Rights Exceptions for Minors

• In loco parentis - while a student is in the custody of a school, the school can and often should act as a parent.

• Goal to Educate. If an act of a student can interfere with the educational process, that act may, in many cases, be suppressed.

The Bill of Rights Marketplace of Ideas

The court has recognized the importance of the free flow of ideas in schools:

"The classroom is peculiarly the 'marketplace of ideas.' The Nation's future depends upon leaders trained through wide exposure to that robust exchange of ideas."

Keyishian v Board of Regents 1967

The Bill of Rights Private Schools not Subject to Restrictions

• Public schools only. Private schools are not subject to any restrictions in terms of violations of the rights of students.

Amendment IIRight to Bear Arms

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

District of Columbia v. Heller (2008)

• Can D.C. ban private possession of handguns?

• Supreme Court voted 5-4 to strike down ban.

• 2nd Amendment does establish the individual right to keep and bear arms for hunting and self-defense.

• However, recognized that Government can regulate gun rights.

• Scalia wrote majority opinion

Amendment IIIQuartering

No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

Amendment III

• Relevance: Right to Privacy.

• “A man’s house is his castle.

Amendment IVSearch and Seizure

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 affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Amendment IV

• Unreasonable search and seizures;

• Warrants

• Probable Cause

• Due Process!

• Rights to Privacy!

Amendment IVSearch and Seizure

• Restricts police from stopping and searching you without probable cause.

• Rules apply differently to schoolchildren.

• School officials are free to search a student if there is evidence that the student committed a crime or violated a school rule, and if the search is reasonable at the outset and reasonably limited in scope.

Amendment IVViolations of Search and Seizure Protections

More and more schools are searching the contents of student lockers, bags, and of their persons.

New Jersey v TLO (469 US 325 [1985])

A search of a student's purse to find cigarettes the student was suspected of smoking on school grounds was upheld.


Reaffirmed the role of the school in loco parentis

Recognized that school officials are representatives of the State.

• Rules were established for searches

• Reasonableness• Not excessively intrusive• Related to the offense that is

being investigated.


• Urine tests of student athletes were upheld in Vernonia School v Acton (1995)

• Justification for Testing:– in loco parentis– a lowered expectation of privacy for athletes– need for deterrence of drug use, particularly among

athletes


"Fourth Amendment rights, no less than First and Fourteenth Amendment rights, are different in public schools than elsewhere; the "reasonableness" inquiry cannot disregard the schools' custodial and tutelary responsibility for children.“

Supreme Court

There have been no reviews of cases of locker searches by the Supreme Court, most likely because the locker, while possibly containing personal property of the student, is itself the property of the school.

Amendment VDue Process Double Jeopardy Self-Incrimination

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………..

Amendment VDue Process Double Jeopardy Self-Incrimination

…….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.

Amendment V

• Grand Jury;

• Double Jeopardy;

• Self incrimination;

• Due process;

• Just compensation

Amendment VIRights in Criminal Prosecutions

……and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Amendment VI

• Speedy and public trial;

• Impartial jury;

• Informed of the nature of accusations;

• Confronted (and obtain) witnesses;

• Assistance of Counsel

Amendment VIIRight to a Jury Trial in a Civil Case

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

Amendment VIIICruel or Unusual Punishments

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Amendment VIII

• Excessive bail;

• Excessive fines;

• Cruel and unusual punishment

Cruel and Unusual Punishment

• Lethal Injection: Cruel and Unusual?

• Unnecessary risk of pain and suffering?

• 1/2008: V. Kentucky case

• 36/37 death penalty states use it

• 1878 Court upheld death by firing squad

Amendment IXRights Retained by the People

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment IX Interpretations

• Impossible to list all the rights and liberties.

• BoR does not increase powers of the national government or impose any limitations on the national government.

• Judges and Congress need to affirm rights not mentioned in the Constitution.

Amendment XRights to the States

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

Amendment X Interpretations

• States the nature of American federalism but adds nothing to the Constitution as ratified.

• Protects the powers of states against the national government.

Brown v. Board of Education

• Prior to the 1950s, African Americans were still barred from attending many public schools solely on racial grounds.

• Held that the "separate but equal" policy was inherently unequal.

Brown v. Board of Education

• Follow-up ruling the next year, the justices ordered that schools were to be desegregated "with all deliberate speed.“

• Notwithstanding the ruling, school desegregation suits continue to crop up from time to time.

May 17, 1954“In the field of public education, the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.”

- Chief Justice Earl Warren

Educational Influence: The United States Supreme Court ruled unanimously that separating black and white children in public schools was unconstitutional.

1957

“It wasn’t that we wanted our children to go to school with white children. That was not the gist of it at all. We wanted our children to have a better and equal education, which we knew that they were not getting.” -Vivian Scales, Parent Plaintiff in Brown vs. Board of Education

1964 – Civil Rights Act

“I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.” -Martin Luther King

Parents Involved in Community Schools v. Seattle School District No. 1

Seattle School District• Allowed students to apply to any high school in the

District.• Used a system of tiebreakers to decide which

students would be admitted to the popular schools. • The second most important tiebreaker was a racial

factor intended to maintain racial diversity.


• If the racial demographics of any school's student body deviated by more than a predetermined number of percentage points from those of Seattle's total student population (approximately 40% white and 60% non-white), the racial tiebreaker went into effect.


• At a particular school either whites or non-whites could be favored for admission depending on which race would bring the racial balance closer to the goal.

• A non-profit group, Parents Involved in Community Schools (Parents), sued the District, arguing that the racial tiebreaker violated the Equal Protection Clause of the Fourteenth Amendment as well as the Civil Rights Act of 1964 and Washington state law.

Prohibits the use of race as the sole factor in order to integrate public schools and declined to recognize racial balancing as a compelling state interest


In a fragmented opinion delivered by Chief Justice John Roberts, five justices held that the School Boards did not present any "compelling state interest" that would justify the use of race for school seat assignments.


• In order to survive strict scrutiny analysis, a narrowly tailored plan must be presented in order to achieve a "compelling state interest."

• Prior Supreme Court cases had recognized two compelling interests for the use of race.

• First, to remedy the effects of past intentional discrimination. Seattle schools had never been segregated by law, therefore they could not raise that interest.


• The second compelling state interest is the goal of achieving a diverse student body in higher education. This diverse body is not defined only by having a great number of racially diverse students but by also considering other factors beside race.

• The plans at issue in this case do not use race as an assessment for broader diversity, instead, they use solely race as a factor for assigning students to different schools.


• Roberts concludes that there are other factors besides race that can be used to achieve compelling state interest. The fact that the plans at issue in this case did not attempt to use any other of these mechanisms makes them constitutionally flawed because they are not narrowly tailored.


Associate Justice Anthony Kennedy did not join the rest of the opinion by the Chief Justice, therefore, those parts of the opinion did not command a majority. In this Plurality Opinion, Roberts wrote that the Schools at issue contend that a racially diverse environment is beneficial for education and they submit this as the reason why they consider race alone in their school assignments. However, Roberts considers that this interest is not compelling and that the use of race for this goal is not narrowly tailored, it is instead used for racial balancing, which is unconstitutional. The schools base their numbers in demographics, therefore making this goal a mean to achieve a numerical quota to achieve racial balancing. Roberts concludes that racial balancing cannot be a compelling state interest.


Roberts concludes his opinion for the plurality by saying:

"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."


Justice Anthony Kennedy: Schools may use "race conscious" means to achieve diversity in schools but that the schools at issue in this case did not use a sufficient narrow tailoring of their plans to sustain their goals.


• Concurrence by Justice Kennedy• Differed with the plurality because the goal of obtaining

a diverse student body is a compelling state interest.• "Diversity, depending on its meaning and definition, is a

compelling educational goal a school district may pursue. "

• "A compelling interest exists in avoiding racial isolation, an interest that a school district, in its discretion and expertise, may choose to pursue. Likewise, a district may consider it a compelling interest to achieve a diverse student population. Race may be one component of that diversity, but other demographic factors, plus special talents and needs, should also be considered."


• Concurrence by Justice Thomas

• "If our history has taught us anything it has taught us to beware of elites bearing racial theories." In a footnote the Justice added a personal mention of Justice Breyer: “Justice Breyer’s good intentions, which I do not doubt, have the shelf life of Justice Breyer’s tenure.”


• Dissent by Justice Stevens• Accused the plurality of mis-

using and mis-applying previous Supreme Court precedents including Brown vs. Board of Education. He concluded by saying that the current Court has greatly changed and that previously

• "[i]t was [...] more faithful to Brown and more respectful of our precedent than it is today. It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today's decision."


http://en.wikipedia.org/wiki/Image:Justice_Stevens.jpg

• Dissent by Justice Breyer• Dismissed Justice Kennedy's

proposed alternatives to the labeling and sorting of individual students by race and denounced the majority opinion.

• “It is not often in the law that so few have so quickly changed so much,” Justice Breyer said of the Court's decision. He called the ruling a "radical" step away from established law that would take from communities a critical tool used for many years in the prevention of resegregation.


What’s Next?


Amendment XIV, 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 the law; nor deny to any person within its jurisdiction the equal protection of the laws.

Amendment XIV

• Defines citizenship.

• Bill of Rights applies to States.

Documents

Introduced by James Madison in 1789.Introduced by James Madison in 1789. Adopted in 1791.Adopted in 1791. First 10 amendments to the Constitution.First