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AUTHOR Kaplan, Howard, Ed. TITLE That Delicate Balance II: Our Bill ofRights. Instructor's Guide. INSTITUTION American Bar Association, Chicago, Ill. Special Committee on Youth Education for Citizenship. SPONS AGENCY American Historical Association, Washington,D.C.; American Political Science Association,Washington, D.C.; Pew Charitable Trusts, Philadelphia,PA. REPORT NO ISBN-1-57073-023-7 PUB DATE 94 NOTE 53p. AVAILABLE FROMAmerican Bar Association, Youth Education for Citizenship, 541 North Fairbanks Court, Chicago,IL 60611-3314 ($10). The five-part videotape series is available from the Public Broadcasting Service,1320 Braddock Road, Alexandria, VA 22314($350). PUB TYPE Guides Classroom Use Teaching Guides (For Teacher)(052)
EDRS PRICE MF01/PC03 Plus Postage. DESCRIPTORS *Citizenship Education; Civics; *Constitutional Law: Controversial Issues (Course Content); Critical Thinking; Instructional Materials; *Law Related Education; Secondary Education; SocialStudies; Teaching Guides IDENTIFIERS *Bill of Rights; *United States Constitution
ABSTRACT This instructor's guide assists secondarysocial studies educators in making effective useof the five-part video series, "That Delicate Balance II: OurBill of Rights." In the tradition of "The Constitution: ThatDelicate Balance," the series introduces students to the Bill of Rights andthe controversies that have arisen over these rights. Led bymoderators using the Socratic method of inquiry, the series featurespanels of experts engaging in lively debate about the constitutional,ethical, and social issues arising from a number of hypotheticalscenarios. The programs enrich secondary civics, government, andhistory courses that examine the Constitution, Bill of Rights, civilliberties, or contemporary issues. The instructor's guide openswith a summary of the topics of the five units in the series. Theunit topics are Roe v. Wade; the First Amendment and hate speech; a rapetrial; equality and the individual; and criminal justice, from muider toexecution. A section on each unit providesteachers with an overview of theissue presented, background materials thatteachers may copy and distribute to their class, and discussionquestions based on these materials that students can debate prior toviewing the video. Each section likewise presents discussion questions forthe class to debate following the video as well as suggestionsfor further research, reports, and essays. At the back of theguide, teachers are provided with a convenient list of teaching resourcesrelated to the Bill of Rights. (JD) U 5 DEPARTMENT OF EDUCATION Office of Educational Research and Impi,,ement EDUCa,TIONAL RESOURCES INFORMATION CENTER (ERIC) his document has been reproduced as received from the person or o.ganization originating it Cr Minor changes have been made to improve reproduction quality
Points of view or opinionsstated in tnisdoCu went Jo not necessarily represent official OE RI position or policy
PERMISSION TO REPRODUCE THIS MATERIAL HAS BEEN GRANTED BY 41/4JL-s-r_. Me./(mneo
TO THE EDUCATIONAL RESOURCES INFORMATION CENTER (ERIC)
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/IA American Bar Association Special Committee on YouthEducation for Citizenship BEST COPYAVAILABLE 9 CREDITS
John Paul Ryan, Director Editor Mary Louise Williams, Educational C' ilege & University Programs Howard Kaplan Consultant American Bar Association Assistant Director Project Crossroads Chicago, Illinois American Bar Association Santa Fe, New Mexico Special Committee on Youth Stephen Wasby, Professor of Political Education for Citizenship Reviewers Science Chicago, Illinois Diane Geraghty, Professor Loyola University School of Law State University of New York at Albany Coraributors Chicago, Illinois Bill of Rights Education Margaret Armancas-Fisher, Director Collaborative Liaisons University of Puget Sound Institute for Douglas Kmiec, Professor John Patrick Citizen Education in the Law Notre Dame Law School Member, BREC Governing Board Tacoma, Washington South Bend, Indiana Director, Social Studies Development Center Frank Kopecky, Professor of Legal Paul Murphy, Professor of History Bloomington, Indiana Studies University of Minnesota Sangamon State University St. Paul, Minnesota Claudia Collier-Seiter Springfield, Illinois Karen O'Connor, Professor ofPolitical Member, BREC Governing Board Teacher, Layton High School Richard Roe, Professor of Law Science Layton, Utah Georgetown University Law Center Emory University Washington, D.C. Atlanta, Georgia American Bar Association Special Committee on Youth Sharon Tucker, Assistant Professor Anita Richardson, Editor, Preview of Education for Citizenship History and Political science United States Supreme Court Margaret Bush Wilson, Chair Albany State College Cases Mabel C. McKinney-Browning, Director <- Albany, Georgia American Bar Association Division for Public Education Seva Johnson, Editorial Director Chuck Williams, Reporter Adjunct Professor, John Marshall Chicago Daily Law Bulletin Law School Chicago, Illinois; Chicago, Illinois Irk
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INSTRUCTOR'S GUIDE
SPECIAL COMMITTEE ON Yot4Ethiweim, 6.410/72ef4ship AMERICAN BAR ASSOCIATION 4( *
Support for the guide has been grant- not be construed as representing the eCI from the Bill of Rights Education policy of the American Bar Collaborative, a joint project of the Association, nor do they represent the c 1994 American Bar Association, American Historical Association and official position or policies of the 541 N. Fairbanks Court, Chicago, IL the American Political Science American Historical Association, the 60611-3314 Association, with funding from The American Political Science Association, Pew Charitable Trusts. or The Pew Charitable Trusts. ISBN 1-57073-023-7 The views expressed in this docu- ment are those of the authors and To order a copy of this guide, contact PC 497-0052 have not been approved by the House the American Bar Association, YEFC, of Delegates or the Board of 541 N. Fairbanks Court, Chicago, IL Governors of the American Bar 60611-3314; 312/988-5735. Association and, accordingly, should $10.00
4 ABOUT THE SERIES
Introduction Columbia University Seminars on of downlinking C-Band transmissions. ,eceive a copy of this guide, Media and Society and the American For further information (including contact the American Bar Association, Bar Association present That Delicate licensing), contact PBS Adult Learning YEFC, 541 N. Fairbanks Court, Chicago Balance II: Our Bill of Rights, a Service at 800/257-2578. IL 60611-3314; 312/988-5735. five-part series of hour-long programs That Delicate Balance ll is also Support for the guide has been grant- on critical Bill of Rights issues con- available from PBS Video ed from the Bill of Rights Education fronting Americans. (800/344-3337). The cost is Collaborative, a joint project of the American Historical Association and Produced under the guidance of $350/series or $79.95/program. You the American Political Science former CBS News president Fred may also want to contact your local Association, with funding from The Friendly, the series is in the tradition PBS affiliate to see when it will Pew Charitable Trusts. of The Constitution: That Delicate rebroadcast the seriesor to encour- Balance and other Friendly-produced age the station to do so. For educa- Teaching notes are organized into series. Led by moderators using the tional use, broadcasts may be taped the following sections: Socratic method of inquiry, the series off-air without charge within PBS Before Viewing the 2'ogram offers features panels of experts engaging in guidelines. teaching suggestions to use prior to lively debate about constitutional, eth- using the program. ical, and social issues arising from a Overview of the Program provides number of hypothetical scenarios. valuable background information, a ABOUT THIS INSTRUCTOR'S summary of the program's content, Participants and special terms. This section can be Program moderators include trial GUIDE duplicated for classroom use. attorney /Court TV anchor John Ford This instructor's guide to That Delicate and Harvard Law professors Arthur Balance II: Our Bill of Rights is While Viewing the Program presents Miller, Charles Nesson, Charles designed to help secondary social activities for student investigation of Ogletree, and Kathleen Sullivan. The studies educators make effective use the topic and related concepts. These many eminent panelists include Yale of each of the five programs in their pages are also formatted to duplicate Law School Professor Stephen Carter; classrooms. It has been prepared by for classroom use. the American Bar Association Special former U.S. Appeals Court Judge After Viewing the Program contains Committee on Youth Education for Robert Bork; U.S. Supreme Court responses to questions and alternative Justice An':onin Scalia; Yale University Citizenship (ABA/YEFC). teaching suggestions to develop the President Benno Schmidt; U.S. These programs will enrich and topic further. Solicitor General Kenneth Starr; New extend units in secondary civics and York Times columnists Anthony Lewis government classes examining the and Anna Quindlen; and ACLU Constitution, Bill of Rights, civil rights President Nadine Strossen. and civil liberties, individual rights, "justice and the law," or contemporary Availability issues. Relevant Supreme Court cases Off-satellite taping rights for the cited in this instructor's guide empha- five-part series cost $125 for ALSS size recent judicial decisions. The pro- Associates (includes many universities, grams are also appropriate for many public institutions, and school dis- areas of study in American and world tricts) or $200 for nonmembers with history classes (see concept matrix on access to satellite equipment capable inside back cover). 1. 2 ABOUT THE PROGRAM
Pages 5-12 1 Pages 13-202 Pages 21-283
4( LIFE AND CHOICE 41, THE FIRST ..71( TWO ACCUSED: AFTER AMENDMENT CHRONICLE OF ROE v. WADE AND HATE SPEECH A RAPE TRIAL
Program Summary Program Summary Program Summary Roe v. Wade, 410 U.S. 113 (1973), is The First Amendment and Hate Rape is a criminal offense that occurs the Supreme Court decision that Speech debates the appropriateness when a person engages in sexual established a fundamental constitu- of regulating hate speech that intercourse with another person with- tional right to abortion restricted only demeans, offends, angers, or attacks out that person's consent. In Two when there is a "compelling state an individual or group on the basis of Accused: Chronicle of a Rape Trial, a interest." In this video program, mod- race, ethnicity, gender, religion, or sex- college student named Jane Bright erator Charles R. Nesson of the ual orientation. Ethnic jokes, racial charges the governor's son, Joe Fame, Harvard Law School asks a panel of slurs, homophobic remarks, and dis- with date rape, also known as scholars, commentators, and pro- and playing swastikas or burning crosses acquaintance and nonstranger rape anti-Roe activists to envision that Roe are all examples of hate speech. a crime whose definition varies by v. Wade has just been overturned by a Program moderator Arthur Miller state, but one in which the victim "bare majority" of the Supreme Court. of the Harvard Law School leads the knows the attacker. Date rape is pro- Individual states are now free to regu- discussion through a series of inci- hibited by state laws that make rape a late abortions, including banning them dents ranging from campus speakers crime. Since most rape victims know outright. Nesson moves the panel and racial supremacy meetings to their attackers, date rape constitutes a through a sequence of changing sce- insulting comments and cross burning, significant number of rape cases and narios during which they express their from speech that is most likely to be important legal and ethical questions opinions regarding abortion's legal protected to speech that includes that this program explores. and political aspects. actions that may be regulated. As the The jury will be asked to weigh The abortion issue has been one distinguished panel debates important Joe's word against Jane's. If both wit- of the twentieth century's most ago- constitutional issues, spontaneous, nesses present credible testimony, nizing conflicts. Classes viewing the unexpected answers often surface. how can the jury decide who is lying program should remember that it Frequently, liberals end up on the and who is telling the truth? Can the deals with a question of law; there- same side as conservatives, and court prevent the jury from hearing fore, the discussion focuses mainly on groups that the public generally sees and being influenced by media allega- legal and political questions. as being on the same side of an issue tions regarding Jane's and Joe's pribr sexual conduct? From hearing court- The program is divided into three split over the details. The complexity room testimony about it? Should the segments, plus an introduction and of the topic and the need to seek court prevent these things? May it? conclusion by Fred Friendly. compromise are clearly evident. Viewers are able to observe firsthand Moderator Kathleen Sullivan of the the painstaking process by which Harvard Law School leads a distin- political consensus is reached. guished panel as they confront the dif- ficulty involved in balancing the rights of plaintiff and defendant in date rape cases.
C 3 ABOUT THE PROGRAM
Pages 29-364 Pages 37-455 Page 46
EQUALITY .4,( CRIMINAL JUSTICE: 4( EDUCATIONAL AND FROM MURDER RESOURCES THE INDIVIDUAL TO EXECUTION
Program Summary Program Summary Pages 46-47 In Equality and the Individual, pro- In Criminal Justice: From Murder to gram participants struggle with the Execution, John Ford leads a distin- question of the extent to which the guished panel through the develop- ADDITIONAL civil rights laws and constitutional pro- ments in a hypothetical murder case RESOURCES visions that were designed to end from the discovery that 7-year-old racial discrimination against minorities Becky Carson has been sexually should limit modern race-conscious assaulted and brutally murdered, to goals or quotas designed to benefit the ensuing investigation, arrest, trial, Page 47 them. This debate over so-called and sentencing of Frank, one of two suspected school custodians. "reverse discrimination" begins when KEY moderator Charles Ogletree, Jr., of the At each stage of the hypothetical, ORGANIZATIONS Harvard Law School tells his panel of the panelists examine the inherent judges, journalists, academics, and polarity between society's need, on school administrators that, in a town tne one hand, for protecting individu- called Pacifica, five white police offi- als against undue governmental intru- Page 47 cers have apprehended the wrong sion and, on the other, for society's manan African Americanand collective security through the govern- severely beaten him. The mayor's ment's diligent prosecution of crimi- FURTHER office is facing accusations not only of nals. At different times in our history, INFORMATION police brutality but of racial discrimi- the courts have moved closer to one nation. African Americans, who repre- pole, then to the other. They have also sent 35 percent of the city's popula- adopted hybrid or compromise posi- tion, represent only 10 percent of its tions based on balancing the two police force. interosts. Though diverse and conflicting opinions emerge, it is apparent that panel members agree that America must move toward a society where a person is evaluated on individual abili- ties without regard to color, gender, 410 U.S. 113 (1973) ?!? religion, sex, or any other discrimina- Legal citations, such as the one above, typically tell you where to tory factor. This program reveals, how- find the full decision in cases. The first part tells you the volume ever, that we have yet to reach a con- number (e.g., 410); the second, the reporter series (U.S.); and the sensus on the means through which third, the page number on which the case begins (113). The num- to achieve this goal, and that resolving ber in parentheses is the year the case was decided (1973). Report difficult issues like the ones involved volumes of Supreme Court cases include the United States Reports here takes extraordinary skill and pro- (U.S.) and the Supreme Court Reporter (S.Ct.). Pending Supreme found wisdom. Court cases are assigned docket numbers.
4 BEFORE VIEWING THE PROGRAM
Early Orientation A few days before your class views the of two or more students, who will been likely to prevent us from ever program, provide each student with a take different positions in answering reaching a workable compromise out- photocopy of pages 7-11. Have them Appoint one student to lead the pres- side judicial intervention? Identify read up to "While Viewing the entation of answers to the class two what theSe convictions might be. Program" to become familiar with days before the tape is shown. Each Group 3: what Roe actually did and how it did group will express its opinions using How might pro-choice forces have so, and with the legal terms and other the techniques of "thinking as argu- been able to work through the state information needed to understand the ment" presented in the second stu- legislaturesor perhaps even issues discussed in the program and dent challenge on page 10. The stu- Congressto change abortion laws? to work with these instructional mate- dent leader will invite classmates to What means of doing so would have rials. You may wish to have some stu- share their opinions using the same been at their disposal? How might dents look up unfamiliar terms and process. Stress that, for both the group pro-life forces have countered them? post definitions for the class. Stress and classroom aspects of this activity, Group 4: students who wish to contribute effec- that, while reading these pages, the If Roe was overruled, Justice Stewart's tively must be very familiar with students will have the opportunity to philosophy of "judicial restraint" or "thinking as argument." practice analyzing perspectives "strict interpretation" in deciding the unemotionally, so they should pay Group 1: meaning of the Bill of Rights would be special attention to the process as What is the constitutional right of pri- ascendant on (would dominate) the explained in the first student chal- vacy on which the Court's decision in Supreme Court. How might this affect lenge on page 10. Roe was based? Where in the Bill of the balance of power among the Appoint one student to schedule Rights and the Fourteenth Court, the Congress, and the presi- and lead a class discussion on the Amendment is it stated? Is it explicitly dent? Between the federal and state experience students had in analyzing mentioned or implied? What does it governments? Would there be any perspectives they encountered while protect besides abortion? Why is it other way to make abortion a consti- reading. Did they strongly resist any controversial? Which side of the con- tutional right? perspective? Did they strongly agree troversy reflects your opinion regard- Group 5: with any? Have the class leader ask for ing a constitutional right of privacy? Can state constitutions guarantee two or three student volunteers who more rights than the federal will prepare to trace their thinking on Group 2: Constitution does? Can the one perspective through steps 1-4 in If the Court had decided Roe different- Constitution be changed, even if a Student Challenge 1. As part of this ly in 1973, do you think that the tradi- majority of Justices don't think it early class discussion, these same stu- tional route of political debate and should be? How easily can the dents will help others unemotionally legislative give-and-take would have Constitution be amended? Why do analyze any difficulties or impasses been likely to create an evolving you think the framers made it this that occurred during their own reading national consensus on the abortion way? or the class discussion itself. question? What factors might have fostered such a consensus? Which Group 6: What are the implications if a constitu- Three Days Before might have prevented compromise Answers to the questions in the fol- through political and legislative chan- tional right is announced and then taken away when the Court member- lowing group activities can be devel- nels? For example, would conflicting ship changes? Give an example of oped out of materials on pages 7-10. and deeply held moral convictions when this has happened (separate- Assign any of the questions to groups about when human life begins have 5 7 but-equal facilities for African organize and review all the constitu- the Constitution on the basis of an Americans and whites is one). Do you tional rights that have been recog- individual's right to own property. In feel that, if new Court members nized and protected through constitu- the 18005, the issue of slavery was believe that a previous constitutional tional amendments. Have group lead- destroying domestic tranquility and decision was wrong, they have an ers organize the material into one the general welfare. The Civil War and obligation to abide by it? To overrule presentation chart. the resulting Thirteenth, Fourteenth, and Fifteenth Amendments expanded it? If so, why? If not, why not? Society's versus the Individual's Rights the nation's understanding of rights Write on the chalkboard or on an Group 7: and gave "individual rights" and citi- overhead transparency, "Do only indi- Would the Court's dramatically chang- zenship rights to all African Americans. ing the law hurt the Court by making it viduals have rights, or does society as seem "political" and hence less a whole also have rights?" After dis- Day of Program deserving of the moral authority tradi- cussion, point out that, in addition to Since students will need pages 7-11 tionally accorded to it? Or would treat- securing the "Blessings of Liberty," the while viewing the video, you might ing abortion as a policy issue best Preamble also states that the want to have some extra copies on handled by Congress and the state Constitution was ordained to "insure hand. On page 11, there are three sets legislatures actually help the Court domestic Tranquility, ... promote the of focus questions, one for each part remain "above politics"? general Welfare." Ask for definitions of terms from this constitutional passage. of the program. If you are presenting the entire video in one session, review Two Days Before How do we determine the general the questions with your students at Prepare a classroom lecture and/or welfare? this time, following the framework student exploration activity that can As in Figure 1, draw or have stu- below. Otherwise, review one set at include any of the following topics. dents draw a scale balancing individ- a time. ual rights and society's general wel- Contrast Between Rights and fare, supported by the Constitution, Part One: "Westphalia's" Abortion- Privileges the Bill of Rights, and the Fourteenth banning Legislation On the chalkboard or on an overhead Amendment. Actions, events, new The panel for this video consists of 17 transparency, write the words rights interpretations by the government's speakers. For the first set of focus and privileges. Ask students to give three branches, or redefinitions can questions, assign a specific speaker to examples of rights and, when appro- disturb the delicate balance. When each student, with at least two stu- priate, to define them (for example, this happens, something has to be dents having the same speaker so that liberty, pursuit of happiness, voting). done to restore the balance. they can compare and validate the Also ask for examples of privileges Explain or have students research, speaker's remarks and position. A (holding office, participating in a press identify, and list laws, executive panel seating chart is shown on page conference, driving). How do the two orders, and/or judicial decisions that 7. (A list of participants' names and categories differ? Explain that rights tipped the balance in favor of the gen- titles appears on page 48.) Students are protected by law and cannot be eral welfare at the expense of individ- will follow the questions while taking taken away, but they can be limited. ual rights, and the reverse. They notes on speakers' positions. They Privileges are not protected and can should be prepared to explain what should circle comments that they be taken away. was done to regain the balance. don't understand, and note words that Bill of Rights and Section One of the Example: Slavery was recognized in evoke strong emotion, e.g., execution. Fourteenth Amendment Explain or ask students to find out whose rights these documents pro- tect. From what or from whom are these people being protected? Why was such protection necessary when the Bill of Rights was drafted? Is such protection necessary today? Figure 1: Constitutional Amendments Rights v. Rights: Use the amendment format on page 9 A Delicate Balance The Constitution., to explain or help groups of students 111111 of lights, end Amendment. Life and Choice after Roe v. Wade PROGRAM ONE
OVERVIEW OF THE PROGRAM moves the hypothetica: to a pregnant persons to the Supreme Court, as well teenager who goes to a psychiatrist to as the Court's role as constitutional Roe v. Wade, 410 U.S. 113 (1973), is obtain certification that her life is in interpreter versus "super legislature." the Supreme Court decision that imminent danger. She receives the A Supreme Court Justice has established a fundamental constitu- abortion. Given a challenge to retired. President Kunin, elected by a tional right to abortion restricted only whether the girl was in fact in immi- majority of voters, favors freedom of when there is a "compelling state nent danger, Nesson raises the issue choice. She has the opportunity to interest." In this video program, mod- of prosecuting the alleged law break- appoint a Justice who reflects the will erator Charles R. Nesson of the ers, and he asks what legal arguments of constituents who elected her. The Harvard Law School asks a panel of should or could be made in defense scenario begins with President Kunin's scholars, commentators, and pro- and of the doctor who performed the questioning the potential nominee anti-Roe activists to envision that Roe abortion. through Senate confirmation hearings, v. Wade has just been overturned by a and then on to a hypothetical consti- "bare majority" of the Supreme Court. Part 2 (32:00): Federalism Versus tutional challenge which the Supreme Individual states are now free to regu- Freedom of Choice Court must consider. late abortions, including banning them This 18-minute segment begins with outright. Nesson moves the panel moderator Nesson's saying, through a sequence of changing sce- "Representative Hyde, you're pleased narios during which they express their with the way things have gone so far opinions regarding abortion's legal in Westphalia." It examines federalism and political aspects. in the controversy when two states' The abortion issue has been one abortion laws differ. The central ques- of the twentieth century's most ago- tion has to do with the extent to . Nesson nizing conflicts. Classes viewing the which Congress should or can go to program should remember that it force states to comply with a ban on deals with a question of law; there- abortion or to force ?ll state to allow fore, the discussion focuses mainly on freedom of choice. legal and political questions. In opening comments to The program is divided into three Special Terms Representative Hyde, Nesson estab- segments, plus an introduction and lishes that, while Westphalia has ACLU conclusion by Fred Friendly. banned abortion, neighboring ascendant Fredonia allows freedom of choice; emanations Part 1 (2:45): "Westphalia's" Fredonia is further advertising in federalism Abortion-banning Legislation Westphalia that residents there can general welfare This 30-minute segment begins with get "abortions on demand" in hypothetical moderator Nesson's saying: "Well, Fredonia. we're in a new and extraordinary inference world, ... " It deals with abortion-ban- Part 3 (50:00): Supreme Court as injunction ning legislation enacted in the hypo- "Super Legislature"? penumbras thetical state of Westphalia and the This 37-minute segment begins with precedent effects of the new law's enforcement. moderator Nesson's saying to pro-choice Westphalia law has banned abor- Governor Kunin, "You've been elected pro-life tion except in cases of incest, rape, or President of the United States ... you pseudonym imminent danger to the mother's life. have the opportunity to appoint a new stare decisis Nesson asks panel members if they Justice." It brings into question the viable would support such a law. He then "politics" of presidential nomination of
7 BEST COPYAVAILABLE ing women seeking abortions to notify BACKGROUND mother nor fetus. Thus, during these first three months of pregnancy, abor- their husbands; but the other four FORROE V. WADE tions are a private matter between the restrictions passed the undue burden Roe v. Wade, 410 U.S. 113 (1973), woman and her physician, and only testincluding requiring parental con- began when Jane Roe (a pseudonym minimal state legal restrictions that sent or "judicial bypass," a 24-hour for a single, pregnant woman who are aimed at protecting maternal waiting period, and reporting require- lived in Dallas and wished to have an health are permitted. ments for abortion providers. abortion) asked the courts to review In the second trimester, however, the constitutionality of a Texas statute Constitutional Controversy and Roe since abortions at this stage pose risks that made abortion a crime unless Roe is controversial not only because at least as great as those of pregnancy, performed to save the mother's life. it legalized abortion, but also because the state does acquire a compelling Eventually, the case made its way to of the way it did so. The Supreme interest in protecting the woman's the Supreme Court, which, by a 7-2 Courtprecisely because it is a court health. Thus, in the middle three majority, decided that the statute was rather than a legislaturewas not months, the state is permitted to regu- unconstitutional because it violated a asked to decide the case on the basis late abortion in order to ensure that constitutional right of privacy that of whether the Texas abortion law the process remains safe for the included the right to have an abortion. was good or bad as a matter of social mother. Further, the Court ruled that this newly policy: Rather, it was asked to decide recognized right was a "fundamental" In the third trimester, the state the case as a matter of constitutional acquires a compelling interest in the constituthal right, meaning that any law. Thus, the Court's first order of fetus's potential life, which is now state abortion restriction would be business was to determine whatif "viable"that is, in Justice Blackmun's struck down as unconstitutional anythingthe Constitution has to say unless the state could demonstrate words, it has become capable of about abortion. "meaningful life" outside the womb. that the restriction furthered a "com- During these last three months of Implied Right of Privacy pelling state interest" and was narrow- pregnancy, the state may regulate or Although the Constitution says noth- ly drawn to achieve this interest. even prohibit a woman from having ing explicitly about abortion, the Court an abortionso long as it is not neces- has decided that the Constitution and Two "Compelling" State Interests sary to preserve her life or health, its amendments protect the right to Writing for the Roe majority, Justice including mental health. have an abortion as part of an individ- Blackmun identified two state inter- ual's right of privacy. Justice ests relating to abortion: an interest in Blackmun's reading of prior Supreme "Undue Burden" Replaces protecting the pregnant woman's Court cases persuaded him that "a "Compelling Interest" health and an interest in the "poten- right to personal privacy, or a guaran- In Planned Parenthood of tial" human life embodied in the fetus. tee of certain areas or zones of priva- Southeastern Pennsylvania v. Casey, Depending on the pregnancy stage, cy, does exist under the Constitution." 112 S.Ct. 2791 (1992), the Court these interests can become "com- He added: "This right to privacy, upheld Roe's "essential holding" bar- pelling " .so as to permit state regula- whether it be founded in the ring states from prohibiting abortions tions to further them. Fourteenth Amendment's concept of before fetal viability. However, the personal liberty and restrictions upon Court rejected Roe's "compelling state state action, as we feel it is, or, ... in interest" standard (and the corre- Abortion-related State Interest per the Ninth Amendment's reservation of sponding trimester framework for ana- Trimester (in months): Roe v. Wade rights to the people, is broad enough lyzing abortion restrictions) in favor of 0-3 4-6 7-9 to encompass a woman's decision an "undue burden" standard thatasks Compelling for whether or not to terminate a whether the challenged state law has mother no yes yes pregnancy." the purpose or effect of creating "a Compelling for substantial obstacle in the path of a Precedent: Pro fetus no no yes woman seeking an abortion before The Court opinion most often cited as the precursor of Blackmun's analysis Referrir g to medical literature, Roe the fetus attains viability." was delivered in 1965 in the caseof divided human pregnancy into three Applying this less-strict standard Griswold v. Connecticut, 381 U.S. 479 partstrimesters--and determined to five restrictive provisions of the (1965). There, the Court struck down that, in the first trimester, the interest Pennsylvania statute, the Court ruled a state law that made it a crime to use of the state is compelling neither for unconstitutional the provision requir-
8 or dispense birth-control information and advice. The law violated a consti- Why the Right of Privacy Is Constitutionally Protected tutional right of privacy located, Justice The Preamble to the Constitution assures us thai. it was ordained to "secure Douglas said, in the "penumbras, the Blessings of Liberty." Part of the debate on its ratification focused on formed by emanations" from specific identifying rights under the broad umbrella of liberty. Many feared :3 listing of guarantees that do appear in the First, rights would too strictly define and possibly omit important rights that were Third, Fourth, Fifth, and Ninth Amend- not yet understood or even recognized. Thomas Jefferson wrote,"A bill of ments and that are aimed at preserv- rights is what the people are entitled to against every government on earth, ing private zones in which the state general or particular, and what no just government should refuse, or rest may not intrude without compelling on inference." He believed that the courts would come tobe the "gua7,.ilans justification. of those rights ... [and] resist every encroachment upon rightsexpressly stipulated." Dissent: Con When James Madison drafted a bill of rights in 1789, he included an Writing the dissenting opinion in amendment, which became the Ninth, against such encroachment. It states, Griswold, Justice Stewart crystallized "The enumeration in the Constitution of certain rights, sha!! not beconstrued the controversy engendered whenever to deny or disparage others retained by the people." For over 200 years, we the Court announces the discovery of have been redefining and expanding what it means to have rights andhow a "new" constitutional right. While to protect individual rights from oppression by the government orthe "tyran- Justice Stewart found the Connecticut Rights and the Fourteenth law restricting the dissemination of ny of the majority." We look to the Bill of birth-control information to be Amendment for the constitutional foundation of each new definition. "uncommonly silly" and "unwise, or Today, a constitutional right to privacy is generally recognized. However, even asinine" as a philosophical or there is much controversy as to where to "locate" this right in the social policy matter, at the same time Constitution. Although Supreme Court decisions since the 1890shave he could "find no such general right of sought to ground a right to privacy in elements of the First, Fifth, and privacy in the Bill of Rights, in any Fourteenth Amendments, the Constitution does not contain the word priva- other part of the Constitution, or in cy or the phrase "right to privacy." any case ever before decided by this Insofar as the Court has construed the right of privacy to encompassthe Court. It is the essence of judicial duty right of reproductive freedom (first in Griswold v. Connecticut, 381 U.S. 479 to subordinate our own personal (1965), and later, most notably, in Roe v. Wade, 410 U.S. 113 (1973),it views, our own ideas of what legisla- "located" the right principally in the Fourteenth Amendment, stating that"the tion is wise and what is not." right to life, liberty, or property" guarantees "[t]his right of privacy ...found- ed in the Fourteenth Amendment's concept of personal libertyand restric- Civil versus Criminal Penalties tions on state action." The Court also found justification in the Ninth Traditionally, civil, rather than criminal, Amendment's reservation of rights to the people. (See page 12 for alisting penalties have been !.lught against of Supreme Court cases involving privacy, many of which werecited by individuals who have violated abortion Justice Blackmun in Roe.) laws. Cases dealing in criminal law are a matter of the state versus theindi- vidual and may result in punishment by imprisonment and/or fines. On the other hand, the purpose of civil law is to prevent an action or injury or to Amendment Recognized Historical setting/ Societal impact of afford restitution to an injured party; a rights reason for adoptionright's recognition civil case is a question of individual versus individual, and its remedy is Figure 2: Amendment format financial damages and/or an injunc- tion, a court order not to take certain actions. Anyone who refuses to obey an injunction may be held in con- tempt and/or imprisoned, and the individual may lose the license to practice a profession. 9 4.9 Student Challenge 1: Learning to Analyze You identify your anger as stemming from the concept of Perspectives Unemotionally banning all abortions, including cases such as rape and incest. As Anthony Lewis says in this program, we are a nation of 1. Express any value behind your classmate's statement great differences. We have to have some means of rising and the reasoning or belief system behind it: You realize above emotions so as to discuss political and legal argu- that your classmate believes the fetus is the same as a ments rationally. You can learn to react unemotionally to viable human life and a "person" protected under the abortion and other controversial issues by learning to ana- Fourteenth Amendment. lyze perspectives. This process will help you pinpoint .:!;:a.k.iiy where differences in values cause difficulties or 4. State the opposing value and reasoning or counter- impasses in your own and others' thinking and discussion argument: You say that a fetus is different from a human about controversial issues. being and is not a "person." The Supreme Court has not interpreted the word person to include fetuses. 1. Acknowledge your own emotional response to the position/argument: If a classmate says that abortion Adapted from Robert J. Marzano, A Different Kind of should be banned in all cases except danger to the moth- Classroom: Teaching with Dimensions of Learning, er's life, acknowledge that this statement makes you Association of Supervision and Curriculum Development angry. (1992), p. S. 2. Identify and describe the specific concept or state- ments in the position/argument that triggered your anger:
Student Challenge 2: Learning to "Think as Example 1 Argument" Position and Argument: Under the Fourteenth Amendment, the fetus is a person. Henry Hyde says that "Thinking as argument" is a law-based process that you the hypothetical Westphalia law does not go far enough and your classmates can use to elevate discussion of in banning abortion because it allows execution of the highly controversial, complex issues from the personal innocent lifethe fetusin cases of rape and incest. and emotional to the analytical and evaluative level. By Counterargument: To prohibit an abortion for a rape or doing so, you will more effectively engage in "the thinking incest victim is to victimize and punish the innocent process ... the central core of the American ethic ... a woman further. The woman would be forced to carry to symbol of our national destiny." This process is an essen- term a product of a violent, criminal act against her. This tial habit of mind for people living in a democratic society. would be a violation of her Fourteenth Amendment right In order, the criteria for thinking as argument include to liberty and privacy as implicitly recognized in the Presenting a position and its argument: Your position is Constitution. Rebuttal: A violent, criminal act against the your opinion. Your argument is a copnected series of woman does not justify a violent act against the fetus's statements intended to establish your position. These innocent life, thus violating the fetus's Fourteenth statements should have supporting evidence that includes Amendment "right to :fe." explanations, facts, or data such as statistics, interpreta- tions, or legal definitions. Example 2 Employing a counterargument: Your opponents will pre- Position and Argument: Dr. Jones says citizens are guaran- sent a counterargument that is used to undermine your teed Fourteenth Amendment protection of right to life argument by offering contrary evidence to prove your and liberty. The hypothetical Westphalia law forces a argument false, incomplete, or insupportable. teenager to go through with a pregnancy that is 25 times Rebutting: The rebuttal is your response to the counterar- more dangerous to her life than a safe abortion. There- gument. It attempts to reestablish your evidence as valid fore, the law is wrong because it endangers her life. and to establish a logical conclusion. Counterargument: Many believe that the fetus is a per- Examine each of the following examples from the pro- son. An abortion kills the fetus. Therefore, aborting the gram you are going to view to determine whether it fetus violates its right to life. Rebuttal: A fetus is not a meets the criteria for "thinking as argument." legally recognized person. Adapted from Deanna Kuhn, "Thinking as Argument," Harvard Educational Review 1, no. 2 (Summer 1992).
10 1 3 Life and Choice after Roe vWade PROGRAM ONE
WHILE VIEWING THE PROGRAM
Focus Questions
Part One: "Westphalia's" Abortion-banning Legislation Part Three: Supreme Court as "Super Legislature"? Using these questions as a framework, take notes on your Follow the instructions in "Learning to 'Think as assigned speaker's positions. Circle any comments or con- Argumenr to analyze the question your group has been cepts that you don't understand, and note any words your assigned for this portion of the program. speaker uses that evoke strong emotions, for example, 8. Is it politically proper and/or desirable for the execution. President to nominate persons to the Supreme Court 1. Would your speaker support a law making abortion a based on prior knowledge of the nominee's position crime except in cases of incest, rape, and imminent on issues critical to the President's administration? danger to the mother's health? 9. What kinds of questions should a nominee be expect- 2. Would your speaker support the criminal prosecution ed to answer in confirmation hearings? of the persons involved in the abortion, including both 10. The hypothetical case of Jones v. Westphalia chal- mother and doctor? lenges the law and the conviction of Dr. Jones, who 3. What legal arguments would your speaker use in the performed the abortion. What constitutional argu- doctor's defense? ments could be made before the Supreme Court by each side in a challenge to the constitutionality of the state law of Westphalia banning abortion? Part Two: Federalism Versus Freedom of Choice Follow the instructions in "Learning to 'Think as Argument' 11. Stare decisis means "Let the decision stand." It is the to analyze the question your group has been assigned for doctrine that principles of law established in earlier this portion of the program. cases should be accepted as precedent in similar cases that follow. How significant should staredecisis 4. If there was a majority in Congress against abortion be to the Supreme Court's decision in the case of rights, how far can Congress go to force conformity of Jones v. Westphalia? all states in banning abortion? Laws? Federal funds? 12. As Anthony Lewis says at the program's conclusion, "It 5. Would it be proper for the federal government to with- has been the habit of this country to take the ultimate hold medicaid funds from states such as Fredonia that political issues to law, to make them legal questions will not legislate a ban on abortion? ...for gocd or for ill, we look to the Supreme Court as the voice for this very old document." Forcritical 6. What if the congressional majority was pro-choice? issues like the right to choose abortion, should the What would be the proper role of Congress in trying to Supreme Court be a "super legislature"? force states such as Westphalia to conform in getting rid of their bans?
7. Is this a state's rights question or should it be resolved at the federal level?
_4 11 AFTER VIEWING THE PROGRAM American ethic and is much a symbol of our national des- tiny as the American eagle.... " In the conclusion, he refo- cuses the important point to remember, no matter how Classroom Discussion painful the content: 1. Using their notes on speakers in part one, students might analyze any of the various arguments using the As we view the abortion issue, all sides look to process outlined in "Learning to 'Think as Argument.'" A stu- the law, the Bill of Rights, and the Fourteenth dent coordinator should direct students in filling out the Amendment to validate an ethical and moral chart below on the chalkboard or on butcher paper. A list of position.... This 90-minute dialogue was not participants alongside may be helpful. Students will find intended to make up anybody's mind, but to that not all arguments were followed by counterarguments make the agony of decision making so intense and/or rebuttals. They should decide what any missing ele- that you can escape only by thinking. ments might be and write them in a different color. VI hat is your reaction to this statement? In a functioning democracy, can we escape the agony of decision making? Can a democracy survive without it? Position/ArgumentCounterargument Rebuttal Research 1. The decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, 112 S.Ct. 2791 (1992), was handed 2. Students might place their speakers on this continuum down on June 29, 1992. Where do the Supreme Court in terms of the speakers' expressed opinions. Justices fall on the continuum under "Class Discussion" in question 2? Base youi answer on the Justices' concurring and dissenting opinions. What role do you think stare deci- Least Restrictive Most Restrictive sis played? 2. Examine and report on any of these Supreme Court Complete Freedom Regulate or Complete Ban of Choice Limit Abortions on Abortions cases dealing with certain aspects of the right to privacy. Boyd v. United States, 116 U.S. 616 (1886) Union Pacific R. Co v. Botsford, 141 U.S. 250, 251 (1891) Meyer v. Nebraska, 262 U.S. 390 (1923) Extension Activities Pierce v. Soc. of Sisters, 268 U.S. 510 (1925) Olmstead v. United States, 277 U.S. 438, 478 (1928) Reports and Essays One or more students might report on or write an essay Polka v. Connecticut, 302 U.S. 319, 325 (1937) about any of the following topics. Skinner v. Oklahoma, 316 U.S. 535, 541-42 (1942) 1. Professor Carter states that laws are compromises. Griswold v. Connecticut, 381 U.S. 479, 484-485 (1965) Identify a point of seemingly irreconcilable difference in the Loving v. Virginia, 388 U.S. 1,12 (1967) positions expressed in this program. How can compromise Katr v. United States, 389 U.S. 347, 350 (1967) be achieved? Terry v. Ohio, 3G2 U.S. 1, 8-9 (1968) Quindlen speaks of her "misapprehensions about how 2. Stanley v. Georgia, 394 U.S. 557, 564 (1969) the government works," saying that she kept wondering Eisenstadt v. Baird, 405 U.S. 438, 453-454 and 460, where the woman was in the discussion. What did 463-465 (1972) Quindlen mean? Were her comments valid? 3. Create a time line of events related to the constitutional 3. Lewis commented on the regional, cultural, and reli- right to.privacy/reproductive freedom issues. You might gious differences among Americans. What does it say about wan' o consult such resources as the VanBurkleo article our society and us as a people that we look tothe law for and other suggested resources noted on page 46, as well as resolution of our conflicts? Court opinions from cases cited in item 2 above. 4. Was the thinking-as-argument process helpful in dis- cussing the controversial issues in this program? Why or why not? Talk about each step of the process: argument, counterargument, rebuttal. 5. Fred Friendly introduces the program by saying, " [The] thinking process is the central core of the
12 "A --s.
BEFORE VIEWING THE PROGRAM
Program Uses This program can supplement any them read up to "While Viewing the Acton mentioned toward the end of class in which the study of current Program" to become familiar with the program: "The society that is most events or current social problems is free-speech issues and cases, and free is the one that is the most appropriate. For history classes, it can with legal terms and other information responsible." Discuss whether it is true be used when examining minorities' needed to understand the program that names do not hurt and whether efforts to advance their rights (such as and to work with these instructional the saying reflects U.S. law. Also dis- the abolitionists' efforts prior to the materials. cuss the need to develop responsible Civil War and the civil rights move- speech and the limits of imposing ment) or government efforts to limit Class Discussion responsibility through law. speech (such as during the Alien and Two or three days before the class Sedition Acts debates in the1790s, views the program, conduct or have Day of Program every wai. including the Persian Gulf students lead class discussions involv- Since students will need pages14-19 War, and the Cold War). ing the following topics. while viewing the video, you might Government classes will find this 1 Review the special terms on page want to have some extra copies on tape helpful in discussing the current 15 to ensure that students understand hand. Review and assign parts one "political correctness" debate or in the vocabulary, ideas, and issues that and two of the worksheet on page 19 studying the Bill of Rights' or the will be discussed during the program. and view the tape without break if Supreme Court's roles. Sociology or 2. Write the term First Amendment your teaching objective is to focus on human understanding classes can use on the board. Discuss what rights are the Bill of Rights generally and the bal- the program to discuss prejudice and protected. Does the amendment apply ancing involved between the freedom the methods by which tolerance and only to Congress and the federal gov- of speech and hate speech regulation. diversity can be achieved. ernment? Does "no law" actually If your objective is to study the mean that there can be no limitation freedom of speech in greater detail, Instructional Approaches on free speech? however, pause after parts 2,4,and 6, Depending on course objectives, two 3. Review the Jefferson and Holmes and use part three of the worksheet instructional approaches can be used. quotations on page 18. These are two on page19to identify constitutional If the objective is to expose students of the most important quotations on issues basically in the order in which to the complexity of First Amendment free speech. Jefferson's is from his first the tape raises them. Ask students to issues and to give them an apprecia- inaugural address. He is criticizing the take notes during the program and to tion of the balancing of values that Alien and Sedition Laws enacted by complete the worksheet either individ- takes place in speech regulation, the the Federalists and argues that ideas ually or in small groups. entire program may be viewed with- must be met with reason, not sup- out breaks. If, however, the teacher pression. The second quotation is wishes to use the program to examine from a dissenting opinion by Justice specific First Amendment issues, paus- Oliver Wendell Holmes in Abrams v. ing the tape after parts 2, 4, and 6 will United States, 250 U.S. 616(1919). logically combine discussion topics. Discuss the quotes and the concept of a marketplace of ideas. Early Orientation 4. Write on the chalkboard the child- A few days before your class views the hood saying, "Sticks and stones may program, provide each student with a break my hones, but names will never photocopy of pages 14-19. Have hurt me" and this quotation from Lord 13 G The First Amendment and Hate Speech PROGRAM TWO 3 OVERVIEW OF THE PROGRAM tive action, deny that the Holocaust take you to a wonderful city." Many occurred, and generally favor white colleges have enacted codes regulat- The First Amendment and Hate supremacist views. Its members have ing hate speech. These are advanced Speech debates the appropriateness begun to engage in anti-African- as a means of promoting a healthy of regulating hate speech that American, anti-Semitic, and antigay learning environment for minorities, demeans, offends, angers, or attacks speech on campus. What should the but critics argue that the codes stifle an individual or group on the basis of university do? Is condemning hate opinions and the exchange of ideas. race, ethnicity, gender, religion, or sex- speech enough, or is more required? This segment discusses campus rules ual orientation. Ethnic jokes, racial Should the university censor it? Punish concerning campus speech that is slurs, homophobic remarks, and dis- or expel Earle? May the university do offensive to minorities, primarily playing swastikas or burning crosses these things? The First Amendment focusing on methods of confronting are all examples of hate speech. provides that "Congress shall make no hate speech. (A discussion of reasons There is no doubt that hate law ... abridging the freedom of for regulating campus hate speech speech can harm. It conveys a mes- speech, or of the press." Does this takes place at the end of Part 5.) sage that certain groups are unwel- provision limit the university's possible come in a society, and it appeals to responses? Part 2 (8:00): Control of State and prejudice. Certainly, governments have Program moderator Arthur Miller Local Governments the responsibility and, in many of the Harvard Law School leads the This 6-minute segment begins when instances, the duty to assure equal discussion through a series of inci- moderator Miller asks Professor access to al! its citizens and to pro- dents ranging from campus speakers Kennedy, "Does [Earle] have a right to mote tolerance. The key question is and racial supremacy meetings to say that?" It points out the well-estab- how government may go about insulting comments and cross burning, lished constitutional principle that the achieving these goals. from speech that is most likely to be First Amendment and many other One approach is to criminalize protected to speech that includes aspects of the Bill of Rights control and punish hate speech, but this con- actions that may be regulated. As the state and local governments, including flicts with the values that the First distinguished panel debates important public universities such as Midville Amendment protects. First Amend- constitutional issues, spontaneous, State. At one time, the fact that the ment advocates contend that all unexpected answers often surface. First Amendment says, "Congress shall speech, even speech we loathe, must Frequently, liberals end up on the make no law " meant that it was be protected. The proper method of same side as conservatives, and directed only at Congress, but, as the confronting hate speech is with other groups that the public generally sees participants conclude, those days are speech, not with suppression; speech as being on the same side of an issue long gone. may be suppressed only when it turns split over the details. The complexity into action. During this program, par- of the topic and the need to seek Part 3 (14:00): Free Speech and the ticipants on both sides of the issue compromise are clearly evident. Newspaper argue about where to strike the bal- Viewers are able to observe firsthand This 7-minute segment begins with ance between regulating hate speech the painstaking process by which moderator Miller's saying to Mr. Berrill, and affording First Amendment political consensus is reached. " ... you are the co-editor of the protection. This program is divided into eight Midville school newspaper." It discuss- segments, plus host Fred Friendly's es the question of whether the cam- Midville Dilemma introduction and conclusion. pus newspaper should run an adver- The program's hypothetica involves a tisement of a meeting to organize and dilemma that arises at Midville State promote a white supremacist group. A University, where a dynamic student Part 1 (2:00): Methods of general discussion of freedom of the named Evan Earle has formed a group Confronting Hate Spec press is included. of like-minded students called "Aryan This 6-minute segment begins with Truth." The "Aryans" oppose affirma- moderator Miller's saying: "Let me
14 Part 4 (21:00): Free Speech and proposed in a Congressional bill to Campus Meetings expand the coverage of the First Amendment to certain private This 8-minute segment begins when e6 4 ,seP 0-2' 4,0`,'cfio' moderator Miller says to Professor colleges. so.- ce5 Kennedy, " ... the request has come in to hold this [Aryan] meeting in the Part 8 (48:00): Cross-burning d% school auditorium." It affirms the right Incident of a controversial speaker to use cam- This 6-minute segment begins when pus facilities and discusses the con- moderator Miller says, "All of these Miller cept of content-neutral and reason- efforts irc,ide Mithille haven't stopped able time, manner, and place restric- the growth o Aryan Truth, ... " It tions on speech. deals with a cross-burning incident that resembles the facts of a Supreme Part 5 (29:00): Permissible Court case (R. A. V. v. St. Paul, Demonstrations and Hate-Speech Minnesota, I 12 S.Ct. 2538 (1992), Regulation that was decided after this tape was This 7-minute segment begins when produced. Facts and issues of this case moderator Miller says, "On Martin and an exercise involving its decision [I]n our country, we have those Luther King's birthday, [the Aryans] appear on pages 17-18. The opinion three unspeakably precious decide to conduct a dumb show ... " was written by Justice Scalia, which is things: freedom of speech, free- It deals with an offensive and vulgar why he does not wish to directly dis- dom of conscience, and the pru- demonstration that the group is plan- cuss the incident during the program. dence never to practice either of ning. The consensus is that the Just prior to Friendly's ending trib- them. demonstration is permissible, but ute to Thomas Jefferson, Justice Scalia Mark Twain there are some dissenters. Also includ- discusses the responsibility of citizens ed in this segment is a strong argu- not to pursue their free speech rights ment for regulating hate speech. The to the extent that they injure others. regulation proponents argue that the speech harms its targets, encourages a climate of intolerance, and limits the ability of individuals to participate fully Special Terms in the educational community. abridge liberal t 6 (36:00): "Fighting Words" ACLU McCarthyism This 6.5-minute segment begins with alien majority and concurring opinions moderator Miller's saying, "The nature blasphemy nonpolitical speech, of the conduct has shifted somewhat." nonspeech It involves the "fighting words" doc- conservative trine, which allows the state to prohib- content-neutral restrictions ordinance it speech that is likely to provoke a Due-Process Clause political speech reasonable person to react violently. dumb show prior restraint of the press epithet protected/unprotected speech Part 7 (42:30): First Amendment fighting words sedition Coverage for Private Institutions? hate speech slander This 7-minute segment begins when homophobic solicitor general moderator Miller says, "Many people suppression around this table are quite obviously imminent much taken by the marketplace of incendiary speech symbolic speech ideas and free expression." It discuss- libel time, place, and manner restriction es the fact that the First Amendment does not apply to private institutions such as schools and businesses, as is COPY AVAll t.RI E 15 "Marketplace of Ideas" or "Fighting Historical Perspective on First Amendment Freedoms Words"? The history of free speech is tied to historical development. Throughout the One constitutional theory that nineteenth and early twentieth centuries, bigoted expression toward politi- emerges in this video is that, by giving cal, religious, racial, ethnic, and gender minorities was tolerated. It was not each citizen the right to express any until 1917-19 that some innovative law scholars like Learned Hand and ideapopular or unpopular, lofty or Zechariah Chafee began to realize and state publicly that speech had a prop- repugnantthe First Amendment guar- er social purpose and function and, possibly, an improper one.In opposition antees a lively "marketplace of ideas" to wartime repression during World War I, speech began to be weighed on a in which the best ideas will flourish scale of whether or not its expression served the public and the public dia- and the worst will wither. Does the logue, an argument that stressed its social value and societal utility. The time First Amendment distinguish, then, between "political" speech, which can seemed right to assess the impact of public ridicule of Jews, African Americans, Catholics, and women. be subjected to counterarguments in this marketplace, and nonpolitical Ironically, this did not translate into legal action either in the form of speech that is thought likely to spark statutes or First Amendment issues. There was some tolerance after the immediate violence? Political speech 1920s of unpopular political expression, but it came only from judgesand is protected because of its democratic Supreme Court Justices. Further, the Justices were only interested in "politi- function; but there are several limita- cal" speech and its ramifications, whether it threatened the government, tions on free speech. Obscenity, sedi- property, or the public order. It took World War II and the postwar civilrights tion, slander, libel, and blasphemy are movement, plus a backlash against McCarthyism, to raise thepossibility that not protected, for example. government might have some positive responsibility to protect even expres- In Chaplinsky v. New Hampshire, sion, as well as other rights, of "discrete and insular minorities." 315 U.S. 568 (1942), the Court did hold that a state could prohibit the use of fighting wordsthose uttered Today, it is accepted that the face to face that "by their very utter- entire First Amendment--along with ance inflict injury or tend to incite an most of the rest of the Bill of Rights -is immediate breach of the peace." But BACKGROUND "incorporated" by the Fourteenth the decision in Brandenburg v. Ohio, FOR MIDVILLE ISSUES Amendment's Due-Process Clause 395 U.S. 444 (1969), protected the and therefore applies to state institu- Ku Klux Klan leader whose incendiary Protection under the Due-Process tions as well as to the federal govern- speech was broadcast on TV because ment. The fruits of this change are Clause only the "incitement of imminent many and have wide application. It is not immediately apparent why an lawless action" was punishable amendment addressing the U.S. expression. Congress should have any bearing at Distinctions Between Protected and Written Expressions and Symbolic all on a state university's policies on Unprotected Speech student discipline. In the 1925 case of As the Court noted in the 1969 case Speech The courts also consider whether writ- Gitlow v. New York, 268 U.S. 652 of Tinker V. Des Moines School District, ten expressions and symbolic speech (1925), however, the Supreme Court 393 U.S. 503 (1969), students do not such as certain physical actions raise determined for the first time that the "shed their constitutional rights to First Amendment issues. For example, First Amendment's guarantees of flee freedom of speech or expression at the display or defacement of a sym- speech and free press are "among the the school house gate." On the other bol, whether a swastika, American fundamental personal rights and 'lib- hand, not every speech regulation is flag, or burning cross, can arouse a erties' protected by the Due-Process an abridgement of the free speech strong reaction and convey an idea or Clause of the Fourteenth Amend- protected by the First Amendment. opinion as effectively as speech, and ment," which provides that no state Justice Oliver Wendell Holmes put it thus mayor may notqualify as shall deprive any person of life, liberty, memorably: "The most stringent pro- or property without due process of tection of free speech would not "fighting words." law. Thus, the Gitlow decision seemed protect a man in falsely shouting fire In Cohen v. California, 403 U.S. to allow harsh government criticism by in a theater and causing a panic." 15 (1971), during the Vietnam era, those seeking to expose and condemn Deliberate abuse of speech is properly the government was not permitted to its policies and behavior. punishable. punish a draft resister who wrote "F
16 the Draft" on the back of his jacket in Minnesota, 112 S.Ct. 2538 (1992), able to the public for expressive activi- a public place. Courts eventually ruled where a Minnesota juvenile was con- ties), the government cannot suppress that groups like the Nazis and the Ku victed of burning a cross in an African- speech with which it disagrees while Klux Klan have a right to assemble American family's yard in violation of a allowing speech with which it agrees. and march, and that parade permits St. Paul statute that criminalized cross It still may enforce reasonable con- should be issued. For example, in burning and other acts that arouse tent-neutral "time, place, and manner" Village of Skokie v. National Socialist "anger, alarm, or resentment" on the speech restrictions, but it may not dis- Party, 373 N.E. 2d 21, 69 III 2d 605 basis of race, religion, or gender. The criminate based on the speech's politi- (1978), the Illinois Supreme Court youth argued that the law violated the cal content. If the First Amendment read the U.S. Supreme Court's opin- First Amendment. See column three did not protect "racist" speech on ions as requiring it to allow a group of for more details of this famous case. campus, the university could not ban American Nazis to demonstrate and it without also inadvertently stifling display swastikas in Skokie, Illinois, a Public Property as "Open Forum" constitutionally protected speech con- cerning, for example, the merits of the Chicago suburb with a large Jewish In the program's discussion hypotheti- university's affirmative action policy. population including many Holocaust cal, the university decides to grant the survivors. In Texas v. Johnson, 491 Aryans permission to hold a rally in its But, even if the First Amendment U.S. 397 (1989), the Court itself over- auditorium. Why? The circumstances does protect bigoted speech generally, turned a Texas statute that banned the are vital to the university's decision: few would doubt that the university burning of the American flag. When an the government's authority to limit retains the right to prohibit students irate Congress and president respond- speech on public property varies from engaging in face-to-face harass- ed to the decision by enacting a new depending on the property's nature. ment or intimidation of others. federal law punishing flag burning, the If the public property is not "by Court struck it down as well in U.S. v. tradition or designation a forum for R. A. V. V. St Paul, Minnesota, 112 Eichman, 496 U.S. 310 (1990). public communication," the govern- S.Ct. 2538 (1992) Facts: Angered that an African- Protection for Tolerance and ment can forbid speech there in order American family had recently moved Intolerance Alike? to use the property for its intended into his neighborhood, a 17-year-old The hate-speech issue explored in this purpose. On the other hand, if the and several of his friends burned a program stems from another prob- property is either an "open forum" small cross on the family's lawn late lemprivate citizens' assaults upon (such as a public park that is histori- one night. He is arrested and charged cally associated with the free exercise minorities and the state effort to in juvenile court with violating an ordi- impede such behavior, such as in the of expressive activities) or a "limited nance regulating hate speech. The cross-burning case, R. A. V. v. St. Paul, open forum" (sometimes made avail- ordinance states that "Whoever places on public or private property a symbol, Legal and Other Interventions Involving Hate Speech object, appellation, characterization or The First Amendment mandates that Congress shall pass no lawlimiting free- graffiti, including, but not limited to, a dom of speech, the press, or the right of citizens to assemble.Throughout U.S. burning cross or Nazi swastika, which history, the meaning of these words has been debated. Does theFirst one knows or has reasonable grounds Amendment absolutely prohibit all regulation of speech, or may somelimita- to know arouses anger, alarm or tions be imposed? resentment in others on the basis of Over the years, the conclusion has been reached thatthe prohibition is race, color, creed, religion or gender not absolute. Speech can be hurtful, and there arelaws regulating its use if it ...shall be guilty of a misdemeanor." is directed at an individual. For example, the fighting-wordsdoctrine allows R. A. V. is also charged with racially the state to regulate words that are likely to provoke a breachof the peace. In motivated assault, which he does not civil law, there are actions for libel and slander and for intentionalinfliction of contest. He is not charged with tres- emotional stress. But limitations will be allowed only if there are very com- passing or intimidation. pelling reasons to justify them, and those proposing limitations arefaced with Issue: Insulting epithets used in an abstract a heavy burden of showing necessity. May a person be prosecuted for dis- and descriptive sense are protected speech. playing material that arouses anger hate speech by Those who argue for free speech believe that confronting and resentment as defined in the ordi- citizens need suppressing and criminalizing it is not the right approach. Rather, nance, or does the First Amendment citizenship must be taught. to develop tougher skins, and responsible protect such conduct? Which opinion
17 summarizes the Supreme Court's Opinion B: Opinion C: majority decision in the case? Cross burning and other such acts can The law is unconstitutional, not be prosecuted under a number of because it outlaws cross burnings, Opinion A: existing statutes sufficient to prevent which are not entitled to constitution- The cross burning may be punished such behavior without adding the First al protection as true "fighting words," under the ordinance, which applies Amendment to the fire. Although the but because it is overbroad. As writ- only to expression not protected by youth could have been charged and ten, it also makes criminal expressive the First Amendment. States have convicted of other crimes such as conduct that causes only hurt feelings, authority to prohibit forms of expres- arson, trespassing, assault, and mak- offense, or resentmentspeech that is sion that are likely to provoke immi- ing terroristic threats, the statute itself protected by the First Amendment. nent lawless conduct or that could be is unconstitutional because it censors The Court mustn't be distracted from considered "fighting words" that by only the opponents of racial tolerance, its proper mission by the temptation their very utterance inflict injury or while leaving proponents to express to decide this issue over what's politi- tend to incite an immediate breach of themselves freely. This sort of selectivi- cally correct speech in a culturally the peace. Further, the ordinance ty creates the possibility that the city is diverse society. There is fault in decid- affects only those forms of expression seeking to handicap the expression of ing that a state cannot regulate that one knows or should know will particular ideas. Content-neutral alter- speech that causes great harm unless create anger, alarm, or resentment natives are available that do not single it also regulates speech that does not. based on racial, ethnic, gender, or reli- out the content of expression. There is great harm in preventing a gious bias. Thus limited, the ordinance city's people from specifically punish- could therefore apply only to unpro- ing race-based "fighting words" that tected speech as previously defined by prejudice their community. the U.S. Supreme Court and is not overbroad.
If there be any among us who wish to dissolve this Union or to change its republican form let them stand undisturbed, as monuments of the safety with which error of opinion may be tolerated where reasonis left free to combat it. Thomas Jefferson
...the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Oliver Wendell Holmes
) 18 Abp The First Amendment and Hate Speech PROGRAM TWO
WHILE Part Three: Is It Constitutional? VIEWING THE PROGRAM Cross out the correct answer. Yes No 1. A high school prohibits students from wearing black arm bands as a protest to Part One: Panel Members' Perspectives the Vietnam war. Follow your instructor's directions in answering these questions. Yes No 2. The government obtains a court order 1. Which speakers would favor regulating hate speech? closing a newspaper for publishing arti- Why? cles it dislikes. 2. Which speakers are outspoken defenders of free Yes No 3. A public university prohibits a speaker speech? Why? Who is the most outspoken? who advocates racial intolerance from 3. Which speakers do you agree with? Disagree with? speaking in its building. 4. List references to the concept of a marketplace of ideas. 5. Why do many of the minorities and women on the pro- Yes No 4. A city restricts residential neighborhood gram seem more willing to regulate hate speech? demonstrations to daytime hours. 6. Is free speech imporiant to minorities and women? 5. In an effort to prevent a Nazi parade, a 7. What does responsibility have to do with free speech? Yes No city passes an ordinance prohibiting swastika display and requiring payment of Part Two: University, Government, and Controversy a large parade license fee. Follow your instructor's directions in answering these questions. Yes No 6. A private business adopts a policy that 1. May a university discipline someone for making racist prohibits distributing political literature statements? If yes, in what manner? during work hours. 2. Should schools be public forums? Are universities treat- Yes No 7. A person is prosecuted for calling another ed differently than high schools? person a racially offensive name. 3. Does the Bill of Rights apply to state and local governments? Yes No 8. A person is prosecuted for trespassing 4. May the government regulate what is published in and intimidation after putting a burning newspapers? cross on his African-American neighbor's 5. May a college that generally makes rooms available to lawn. speakers refuse to allow them to talk because their views are controversial? 6. What are time, manner, and place. restrictions? 7. May a city or a university prohibit a march or demon- stration held at a reasonable time and place because it will offend the majority of the people? 8. What are "fighting words"? 9. Does the Bill of Rights apply to private businesses and private colleges? 10. May a person be punished for displaying offensive sym- bols, such as swastikas or burning crosses?
"V
19 a building available for speeches may AFTER nance wa', unconstitutional because it not prohibit speakers because of their VIEWING THE PROGRAM selectively prohibited speech that communicated messages of racial, speeches' content. (4) Yes, this is an Use either or both of the following gender, or religious intolerance, creat- example of a reasonable time, place, group exercises to help students ing 1-he possibility that the city was and manner restriction on the free- apply the program information to real seeking to handicap the expression of dom of speech. (5) No, the city must situations. particular ideas. Opinion A is essential- allow the parade to take place. (6) 1. Ask students to analyze the ly the Minnesota Supreme Court's rea- Yes, the First Amendment applies to Supreme Court case R. A. V. v. St. Paul, soning, which was reversed. Opinion state and local governments, but it Minnesota, 112 S.Ct. 2538 (1992), as C is the opinion of four Justices who does not apply to private schools and summarized on pages 17-18. Ask stu- concurred in the result, but on the businesses. (7) No, unless the law dents to guess which was fhe majority grounds that the statute was overly under which a person is being prose- opinion of the Supreme Court, and broad. cuted is a general prohibition of fight- why. Which was the concurring ing words without regard to the partic- opinion? ular characterisitics of the person to To Part 3, page 19: (1) No, the Have students decide whether whom the fighting words are directed. 2. Supreme Court has ruled that the Bill the activities listed in part 3 of the (8) Yes, the prosecution of the crimi- of Rights does not stop at the school worksheet are constitutional. nal act is allowed. However, prevent- house door, and that demonstrations ing the display of an offensive symbol that do not disturb the educational has been ruled unconstitutional. Answers process are protected free speech. (2) To exercise 1, page 18: No, this is a classic example of prior (Opinion B) The Supreme Court restraint of the press. (3) No, a public majority ruled that the St. Paul ordi- university that has a policy of making
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BEFORE VIEWING THE PROGRAM
Two or Three Days Before Photocopy pages 22-27 for students students reclaim their papers using nesses, and the right to counsel. and assign pages 22-24 as reading. their codes. If appropriate for your Students may also identify the right to Then conduct or have students lead class's maturity level, small student be presumed innocent of a crime until any of these activities. groups can discuss reasons why the proven guilty, stressed in program 5, 1. This program requires frank dis- results may have turned out as they and the right to privacy, stressed in cussion of sexual behavior, and por- did for individual items. program 1. Note that neither of these tions of these activities involve contro- 4. Ask students to review the rights appears specifically in the U.S. versial and highly sensitive topics. Constitution and its amendments to Constitution. Enlist students' mature responses in identify any rights involved in the sur- dealing with the topics, especially vey's items. These might include First Day of the Program when they are completing activity 3. Amendment individual rights to free- Since students will need pages 22-27 On page 10 of this booklet, there are dom of speech and the press; Fifth while viewing the program, have extra two student challenges called and Fourteenth Amendment guaran- copies on hand. Instruct the class to "Learning to Analyze Perspectives tees not to be deprived of liberty with- jot down arguments and information Unemotionally" and "Learning to out due process of law; Sixth that the video provides for any item of 'Think as Argument "' that your class Amendment rights to a fair and public particular interest to them, including has already used in connection with trial, an impartial jury, compulsory the panel members' opinions. Later, a activities for t!:z first program, Life and process for obtaining favorable wit- student panel will discuss these items. Choice after Roe v. Wade. Have stu- dents review those activities and adapt similar ones for this program. 2. Review the special terms on page 23 to ensure that students understand the vocabulary, ideas, and issues that will be discussed during the program. 3. Give a copy of page 25 to stu- dents and ask them to complete the survey individually, following the directions. They should not sign this sheet, but they should mark it with some sort of identification code known only to them. Encourage their total honesty, assuring them a right of privacyno.one will know how they answered. Collect the papers, tabulate the results using the table format pro- vided on the worksheet on page 26, and post them. Students will need these pages again for the exercises under "After Viewing the Program," so have the
21 )4 Two Accus:Arl: Chronicle of aRape Trial PROGRAM THREE
OVERVIEW OF THE PROGRAM relations firm. Joe is being tried in the Part 2 (9:00): Criminal Defendant's media, and so is Jane. What effect will Rights Rape is a criminal offense that occurs all this have on the case's outcome? This 6-minute segment egins when when a person engages in sexual moderator Sullivan says to Ms. Simms, intercourse with another person with- "What do we have to prove to win this Jane's Word Against Joe's out that person's consent. In Two case? Do I have to prove I said no?" The jury will be asked to weigh Joe's Accused: Chronicle of a Rape Trial, a We learn that, legally, Joe has the word against Jane's. If both witnesses college student named Jane Bright advantage from the outset. The present credible testimony, how can charges the governor's son, Joe Fame, Constitution stipulates the criminal the jury decide who is lying and who with date rope, also known as defendant's rights The Sixth is telling the truth? Can the court pre- acquaintance and nonstranger rape Amendment guarantees Joe a fair trial vent the jury from hearing and being a crime whose definition varies by with an impartial jury, in the district influenced by media allegations state, but one in which the victim where the alleged crime was commit- regarding Jane's and Joe's prior sexual knows the attacker. Date rape is pro- ted, as well as the right to have a conduct? From hearing courtroom tes- hibited by state laws that make rape a compulsory process for obtaining wit- timony about it? Should the court pre- crime. Since most rape victims know nesses in his favor. The Due-Process. vent these things? May it? Moderator their attackers, date rape constitutes a Clauses of the Fifth and Fourteenth Kathleen Sullivan of the Harvard Law significant number of rape cases and Amendments require that criminal School leads a distinguished panel as important legal and ethical questions defendants be presumed innocent they confront the difficulty involved in that this program explores. until proven guilty. The defendant will balancing the rights of plaintiff and Joe and Jane agree that on a hot, have the assistance of counsel, and defendant in date rape cases. The pro- humid night, Jane accepted Joe's invi- there will be no deprivation of life, lib- gram is divided into four segments, tation to leave the crowded, noisy, erty, or property without due process. with an introduction and conclusion sweltering party downstairs to cool off Proof of guilt will have to be "beyond by host Fred Friendly. in his air-conditioned bedroom, but a reasonable doubt." While this stan- they disagree about what happened dard will not require each juror to there. Joe admits to having sex with Part 1 (2:30): Rape Shield Laws and eliminate all doubts about Joe's guilt Jane, but he says she consentedthe Pretrial Discovery in order to convict him, it is a much usual defense in these cases. She says This 6.-minute segment begins when tougher burden of proof than the typi- moderator Sullivan says to Ms. she told him no. No one could have cal "preponderance the evidence" overheard their conversation because Fairstein, "you're the sex crimes prose- standard used in most civil trials. cutor for the city of Verity." As the pan- of the noise. Thus, as in most date Jane's misgivings only increase, rape cases, there are no witnesses. el's discussion reveals, victims of rape although she finally decides that the have been stigmatized historically. A right decision is to put Joe on trial and number of states have designed rape A Media Trial? try to seek a conviction. Joe hasn't been arrested yet, but shield laws to make information about newspaper headlines are already pro- prior sexual activity inadmissible in claiming "Fame Kid Faces Rape Rap." court so as to protect rape victims. Part 3 (15:00): Press Coverage This 20-minute segment begins when Before the jury is selected, newspa- However, both sides may and will pers disclose that Jane has had sex gather this and related information in moderator Sullivan turns to Mr. with a number of other men and that great detail during the pretrial discov- Nachman and says, "you're the editor other women are willing to testify that ery stage, and this information will of the Verity Post." While many news- Joe sexually attacked them. The prose- most likely get into media, especially papers have a policy of not publishing such cution and defense lawyers begin to in a case that involves a governor's rape victim's names, there's no make statements to the press in order son. There are no legal means to pre- protection toward suspected rapists. Through connections at the police to counteract the adverse publicity; vent this. the defense has even hired a public department and courthouse, the Post
22 and other media almost immediately better to risk allowing some guilty per- learn and publish Jane's allegations, Special Terms sons to escape punishment than to naming Joe. Although there is a state abstinence risk convicting an innocent person. law against publishing rape victims' chastity Limits on Lawyers names, some newspapers have also compulsory witness Although the First Amendment gener- named Jane. As part of First credible testimony Amendment freedom of the press, the ally protects the media's publication of criminal versus civil offense state would need a very compelling, truthful information, lawyers agree to gag laws overriding interest to sustain punish- abide by numerous ethical rules to rape shield laws ment of an accurate description. guarantee that zriminal defendants reasonable juror will have an impartial trial. Some of sequester Part 4 (35:00): Gag Laws, Admissible these agreements limit lawyer's First stigmatize Evidence, and Public Trials Amendment rights. As Justice Kennedy voir dire This 21-minute segment begins when wrote in Gentile v. State Bar of moderator Sullivan turns to Judge 1 Nevada, 501 U.S. 1030 (1991), "inter- Snyder and says, "you're the presiding preted in a proper and narrow man- judge." None of the media informa- ner, for instance, to prevent an attor- tion is admissible at the trial, but it BACKGROUND ney of record from releasing informa- could reach and influence the jury. FOR DATE RAPE ISSUES tion of grave prejudice on the eve of The presiding judge may issue gag Date rape cases are difficult to prove. jury selection," the state may enforce orders to silence the attorneys, but not In Re Winship, 397 U.S. 358 (1970), an ethics rule to bar an attorney from the press. The judge constantly and the Supreme Court formally ruled that making a statement to the press that repeatedly admonishes the jury to the Constitution's Due-Process Clause will have a "substantial likelihood of ignore the press. But, in accordance required the reasonable doubt stan- materially prejudicing" a trial. with the Bill of Rights, the trial will dard because it provided concrete remain public as a means to assure substance for the presumption of Impartial Jurors and Voir Dire that the judicial process is functioning innocence. Even if the jury tends to Jurors are selected through a process properly. believe Jane's account, its verdict still called voir dire (vwahr-deer), where Despite rape shield laws, some must be not guilty unless the evidence lawyers (and/or the judge) question a panelists argue, relevant information at the trial could have persuaded a large pool of prospective jurors about about prior sexual conduct should be "reasonable juror" that Joe is guilty their backgrounds and biases. Each admitted, as happens in some rare "beyond a reasonable doubt." side has the opportunity to object to cases, despite rape shield laws. Others The law makes it harder to con- the selection of any juror they think argue that, in the present case, this vict Joe of a crime than to win a civil will be prejudiced against them. The information has no relevance, since lawsuit against him because the court might agree to move the trial to the issue is whether Jane consented stakes are higher in a criminal case. another county if the potential jurors on that night. Vvhereas a defendant who loses a civil there will be less affected by the pre- lawsuit is typically ordered to pay the trial publicity. Once a jury is selected, plaintiff a sum of money, a criminal the court will instruct the jurors to dis- regard any evidence they may have Nea\ defendant often faces a jail sentence in addition to the other serious conse- heard outside the courtroom, and, in quences that result from having a some rare instances, it might even criminal record. Therefore, the Fifth decide to sequester, or isolate, the jury and Fourteenth Amendment's admon- in a hotel and forbid them from read- ishment that "no person may be ing the newspapers or listening to TV Sullivan, K deprived of life, liberty or property" news. without due process of law has been The law's concern is that the jury interpreted to require the "beyond -a should not be permitted to convict the reasonable - doubt" standard. These accused of anything other than the and other protections for criminal present charge. Evidence of the defendants have led courts to con- accused's prior behavior might be clude that, under our Constitution, it is allowed if the judge is satisfied that it
BEST COPY AVAILABLE 23 establishes a "pattern and practice," would create in the jurors' minds out- but the judge also might determine weighs its relevance in the case and that the prejudice the testimony rules against its use.
her attacker will Why Rape Shield Laws? more likely to press charges if she knows be unable to force her to discuss her sex life in open Rape shield laws have been adopted in nearly all 50 court. As Justice O'Connor noted in her opinion in states and by the federal government. Theserules, which Michigan v. Lucas, 500 U.S. 145 (1991), such statutes apply only in criminal cases, set out when and under "represent a valid legislative determination that rape vic- what circumstances evidence of a rape victim's prior sexu- tims deserve heightened protection against surprise, al behavior can be admitted during a trial. Before these harassnwnt, and unnecessary invasions of privacy." laws were enacted, this evidence was admitted to reflect a lack of chastity in the victim fromwhich the jury could Rape shield laws must comply with the U.S. infer consent to the alleged rape. (Chastity is defined as a Constitution. The danger they pose is that they will pre- the vic- woman's abstention from premarital or extramarital sexu- vent defendants from adequately cross-examining al intercourse.) It was assumed that a woman who "once tims to attack their credibility, thus violating the defen- departed from the paths of virtue is far more apt to con- dants' right to confront the witnesses against them, guar- sent to another lapse." Defense counsel oftenpresented anteed by the Sixth and Fourteenth Amendments. Rape embarrassing, intimate details about the victim's private shield caws have also come under attack in recent years life that rarely had anything to do with the rape charge. because courts have been inconsistent when defining sit- This character assassination caused rape victims great uations as exceptions to the law in which a defendant can humiliation and discouraged reporting of rapes. Many introduce evidence regarding the alleged victim's sexual state legislatures have concluded that a rapevictim is history.
toy
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24 BEST COPY AVAILABLE ( Two Accused: Chronicle of aRape Trial PROGIWI THREE
8. It is unfair of the media to print the name of WHILE A U D an alleged rapist when there has not yetbeen VIEWING THE PROGRAM a conviction. What's Your Opinion on These Rape Issues? 9. Women won't bring cases of rape if they know This survey will give you an opportunity to express your A U D opinions about many legal issues involvilig date rape. Don't their names will be printed in the newspaper. what the law is, but answer based on your understanding of A U D10. When famous people are charged with rape, it rather on how you feel it should be. All opinions are valid so is impossible to get a fair trial because all the long as you can give reasons for them. potential jurors will have heard about it in the media. Circle A if you agree with the statement, U if you are unde- cided, and D if you disagree. Do not sign your name. Your A U D11. Miller is being prosecuted for raping Ann. teacher will give you further instructions. Two years before this case, Ann brought a false rape charge against another man. The A U D 1. The courts treat rape victims, especially victims jury should hear about this prior false charge. of date rape, so unfairly that the victims should not report the rape to the police or A U D12. Because truth is so difficult to determine in bring criminal charges against the rapist in rape cases, and the issues are so personal, court. these trials should be closed to the public.
A U D 2. Bringing criminal charges against date rapists A U D13. A rape victim should have the right to let the will decrease the number of date rapes that jury know that an alleged rapist has prior rape occur. convictions.
A U D 3. If Judy encourages Ramon to have sex with A U D 14. A defendant should have the right to let the her up to the point of sexual penetration and jury know that the alleged rape victim is a then says no, Ramon is guilty of rape if he prostitute. then forces her to have sex.
A U D 4. Sherman is charged with date rape, and the issue is whether Martha consented. If two other women tell the prosecutor that they had similar experiences with Sherman, this evi- dence should be admissible in court.
A U D 5. If Jake is charged with rape, his attorney should have the right to tell the jury that the alleged rape victim has had many "one night stands" with different men.
A U D 6. The media should print rape victims' names so that rape will begin to be treated like all the other crimes against individuals.
A U D 7. If Nate is charged with rape, and the issue is whether or not Diane consented, it is not rele- vant that Diane had sex with Nate before.
25 Two Accused: Chronicle of a RapeTrial. PROGRAM THREE
Tabulation of Survey Results
Statement Agree Undecided Disagree
1
2
3
4
5
6
7
8
9
10
11
12
13
14
26 Two Accused: Chronicle of a RapeTrial PROGR1M THREE
Legislative Worksheet Rape Shield Law The intent of the legislature in adopting this law is to (1) The following hypothetical rape shield law is modeled on protect the privacy of rape victims and (2) provide constitu- existing statutes. Assume that the law has been enacted in tionally fair and effective prosecution of sexual offenses. your state five years ago. Since that time, a numberof court cases have applied it. Several legislators wish toamend the law because they are concerned that the law may not be Section One: In a criminal case in which a person is accused fair. In small groups, decide how, if at all, you will change of rape, evidence of the past sexual behavior of an alleged the law. Your teacher will explain how to present your work victim is not admissible, except when the past sexual behavior is with the accused and the accused is claiming to the class. that the victim consented to the act.
Section Two: Past sexual behavior means any sexual con- duct that took place before the alleged rape.
Which One Will Justice Serve?
Right to Privacy Right to a Fair Trial
Right to an Impartial Jury Right to Be Presumed Innocent
Right to Face Accusers Right to Due Process
Right to Have Compulsory Freedom of the Press Witnesses
27 AFTER refer only to physical acts of sexual Research VIEWING THE PROGRAM contact and not to include verbal alle- Since each state defines crimes gations describing a sex act; permit- through its own legislature, the defini- Assign any of the following extension ting to allow in evidence prior demon- tions (and names) of date rape vary activities to your classes or to individ- strably false charges of rape; or repeal- by state. Find out what your state laws ual students. ing the statute in full and permitting are regarding date rape. judges on a case-by-case basis to Discussion decide what evidence is relevant. After A Related Case 1. Have students select a student each group reports on what it decid- The Florida Star v. B. J. F., 491 U.S. panel to discuss issues of the class's ed, one student from each will join a 524 (1989) choice from the opinion survey. Each committee to draft a compromise A Florida newspaper ran a factually class member will serve on a panel statute for distribution to the class. accurate story about a rape, based on member's team, contributing informa- properly obtained information from tion from program notes to be used in the county sheriff's department. In the panel member's arguments. Essays Ask students to write an essay about violation of a state statute, the story Topics can include the fairness of the mentioned the name of the victim. criminal justice process in these cases, how to achieve a balance between rights and freedoms in cases of date The Court held that, under the First the inadmissibility of various kinds of rape. Limit the students to only two Amendment's free press guarantee, evidence and the relevance of prior conflicting rights, between the defen- the newspaper was not liable for sexual conduct of an alleged rape vic- dant and the alleged victim, or damages to the victim as the informa- tim, the issue of public trials for rape between either of them and a third tion was truthful and "lawfully cases, and the likelihood that the pre- obtained." The Court sought to limit sumption of innocence results in fair party, such as the press. The figure on page 27 will help the students orga- the scope of its decision, emphasizing trials in date rape cases. nize their thoughts. Here are some the particular facts of this case in its 2.Give the students the opportunity examples of rights and freedoms their ruling. to examine and revise the hypotheti- essays might compare and discuss. cal rape shield law on page 27. The students should work in small groups Alleged victim's right to privacy ver- sus freedom of the press of no more than five. Each group should write its revised statute on Freedom of speech and the press butcher-block paper or shelf paper for versus the right to a fair trial display in the classroom. Right to privacy versus right to have Examples of possible revisions of compulsory witnesses the hypothetical law,include making Freedom of the press versus the right the definition of prior sexual behavior to be presumed innocent
,) 1 28 ° al
BEFORE VIEWING THE PROGRAM Discrimination and its effects and mative action. The person should being given seats on the bus; and remedies are highly controversial, sen- explain the different standards of short people get to stand in front in sitive, and even emotional topics for proof necessary when a discrimination group pictures. On an item-by-item many people. As in earlier lessons, claim is based upon a constitutional basis, have the students decide help your students continue to devel- claim as opposed to a statutory claim whether these advantages are unfair op their ability to discuss such issues (e.g., the Fourteenth Amendment to those who don't have them, and by reviewing the two student chal- Equal Protection Clause vs. Title VII of explain why. How is each situation lenges "Learning to Analyze the Civil Rights Act of 1964, as amend- similar to or unlike racial and other Perspectives Unemotionally" and ed by the Civil Rights Act of 1991). An types of discrimination? "Learning to 'Think as Argument,- alternative to this activity is to have 6. Use the survey "What's Your which are presented in the introduc- students research and identify affirma- Opinion?" on page 35 to focus student tion. Use the challenges to help foster tive action plans in your community attention on issues related to the sub- an atmosphere in which your students and interview officers involved in tleties of racial bias and the way we are willing to explore the reasons drafting or implementing them. Later, sometimes see our world in racial given for the positions they take in the the students will report the interviews terms. The survey should be anony- activities. to the class as news stories. mous, and you should tally the results 4.Ask groups of students to imagine yourself. When you report the survey Early Orientation that they are new congressional mem- results, ask questions such as: How Photocopy pages 30-35 for students, bers who have accepted the challenge often are our opinions and decisions and assign pages 30-34 as reading. of ensuring racial equality in their soci- influenced by racia; stereotypes? By Then conduct or have students lead ety beginning this year. Have each prejudice? How colorblind is our soci- any of the following activities. group create an affirmative action ety? If appropriate, to discuss their agenda for their congressional session, views, have students break into small- A Few Days Before naming and describing the programs er groups that will offer encourage- 1. Review the special terms on page they will propose. Have students ment to students who are trying to 31 to ensure that students have mas- word-process and publish their agen- develop their skills in analyzing things tered the vocabulary, ideas, and issues das for their student "constituents" to unemotionally and in thinking as needed to understand these activities evaluate. argument. and the program. Two or Three Days Before Day of the Program 2.Have the students use informa- 5. "Discrimination" isn't always a Since your students will need to refer tion under "Landmark Affirmative nasty word. Ask students to observe to pages 30-35 during the program, Action Cases" on page 34 to put the relationships of people around have some extra copies on hand. together a list of legal parameters themfriends, family, and strangers Review with them the worksheet on under which affirmative action plans and identify several examples of when page 35. Assign them all the ques- have been allowed. people are given an advantage or pref- tions, or let them select ones they are 3. Either version of this activity can erential treatment of some sort. For most interested in. Have the students be done before or after viewing the example, a ten-year-old might give a take notes on them while they view film. Invite an equal employment five-year-old a head start in a footrace; the video, and later either submit their opportunity or human resources offi- veterans can get certain school and written answers or gather in small cer who has participated in drafting or mortgage loans from the government groups to discuss what the answers implementing an affirmative action while others cannot; the elderly are might be. plan to speak to the class about affir- shown special courtesies, such as
BEST COPY AVAILABLE 29 Equality and the Individual PROGRAM FOUR
OVERVIEW OF THE PROGRAM action is needed and proper to reme- Professor Kennedy, you are on the dy the police force's disproportionate admissions committee at the Gateway In Equality and the Individual, pro- African-American and white represen- University, a public institution in gram participants struggle with the tation. Affirmative action is the policy Pacifica which doesn't have a terrific question of the extent to which the of using racial or gender classifications policy in recruiting minorities: 90 per- civil rights laws and constitutional pro- to overcome or compensate for the cent white, 10 percent black." Should visions that were designed to end continuing effects of previous discrimi- African-American applicants be racial discrimination against minorities natory practices. The issue for some favored? Should minority quotas be should limit modern race-conscious panelists turns on whether discrimina- established? There's been no accusa- goals or quotas designed to benefit tion is the cause of the disparity. For tion, no conviction, of discrimination. them. This debate over so-called others, affirmative action is appropri- As Justice Scalia asks, however, is "reverse discrimination" begins when ate no matter the absence of proven color consciousness necessary to get moderator Charles Ogletree, Jr., of the discrimination, to help in the effort to to a colorblind state? Panelists con- Harvard Law School tells his panel of bring our society closer to the front this issue as they consider the judges, journalists, academics, and Fourteenth Amendment's vision of selection of an African-American appli- school administrators that, in a town equal protection for all. cant over an Asian American and a called Pacifica, five white police offi- white, when all three have identical cers have apprehended the wrong qualifications. While the white appli- Part 2 (10:30): When Fourteenth manan African Americanand cant considers seeking legal redress Amendment Protection? severely beaten him. The mayes for violation of his Fourteenth This 7.5-minute section begins when office is facing accusations not only of Amendment rights, the African moderator Ogletree announces, "The police brutality but of racial discrimi- American finds that, after classes start, mayor's done a good job of making nation. African Americans, who repre- his knowledge and skills are as yet some hirings." There's one position sent 35 percent of the city's popula- insufficient to perform up to left, with two applicants: a white with tion, represent only 10 percent of its Gateway's standards. He will have no a higher physical score, and an African police force. advantage in grading at Gateway. American who is in all other respects Though diverse and conflicting equally qualified, with the plus of opinions emerge, it is apparent that being black. Panel members struggle panel members agree that America Part 4 (47:00): An Exclusive School with the question of which two candi- must move toward a society where a for African-American Males? dates the mayor should hire. Some This 8.5-minute segment begins when person is evaluated on individual abili- argue that hiring the African American moderator Ogletree says to Dr. ties without regard to color, gender, would constitute reverse discrimina- Watson, "You're in Pacifica; you've religion, sex, or any other discrimina- tion in violation of the Fourteenth been reading the paper about tory factor. This program reveals, how- Amendment; others, that hiring the Gateway University. Where do we start ever, that we have yet to reach a con- African American is justified to com- to correct this problem?" Dr. Watson sensus on the means through which pensate for historical discrimination; to achieve this goal, and that resolving proposes to establish an exclusive still others argue that history can be difficult issues like the ones involved school for African-American males ignored there's enough in the pre- here takes extraordinary skill and pro- based on empirical evidence that this sent to justify hiring the African type of intervention will increase their found wisdom. American. attendance and academic achieve- Part 1 (2:30): When Affirmative ment. A special Afro-centered curricu- lum will be offered, arid there will be Action? Part 3 (18:00): Quotas and Equal increased in-service teaching and This 8-minute segment begins when Protection Claims moderator Ogletree says, "We're in the This 29-minute segment, the longest counseling. Panelists consider whether the exclusive school would tranquil community of Pacifica." in the program, begins when modera- violate the rights of other groups, with Panelists discuss whether affirmative tor Ogletree says, "Professor Carter, 30 33 the focus on the rights of African- American females. Jim Crow Laws Justice Scalia ends the program Jim Crow refers to practices, institutions, and statutes that result from or fos- by reminding viewers that our nation ter segregation of African Americans from white Americans. The term comes probably has more racial problems from an African-American character in a popular song from the 1830s, and it than most countries do, but it is also came into common use in the 1880s when racial segregation became legal more open and frank about them and in many parts of the South. every other problem. People like the First developed in the northern states and later adopted by the South, panelists are arguing about means, Jim Crow laws refers to statutes that required racial separation in many pub- not ends, which are in the Bill of lic places. These included public schools; recreational, sleeping, and eating Rights and the Fourteenth facilities; public vehicles; even telephone booths. Jim Crow laws deprived Amendment; all are shooting for indi- African Americans of their voting rights. A series of Supreme Court deck vidual treatmentsbased on merit. sions, such as Plessy v. Ferguson, 163 U.S. 537 (1896), fostered use of the separate-but-equal rule in the South and the rapid spread of de jure co. 0 p (officially sanctioned, lawful) segregation. Cates
0\es that, to the extent that they reinforce BACKGROUND ON and codify racial classifications, they DISCRIMINATION AND ITS put off, rather than hasten, the Ogletree REMEDIES achievement of true racial equality. Racial goals and quotas are intended to diversify predominantly white insti- Plessy v. Ferguson: Separate but tutions and professions and to com- Equal? pensate minority groups for having The Equal Protection Clause, as direct been disadvantaged by the continuing and simple as it may seem, has been vestiges of discrimination. Proponents at the center of controversy almost Special Terms point to our country's history of slav- from the moment it was added to the ery and government-sponsored racial Constitution in 1868, in the wake of affirmative action discrimination and contend that de the Civil War and shortly after the de facto facto (existing, whether lawful or not) Thirteenth Amendment abolished de jure discrimination remains to this day in slavery. For example, did the Equal discriminatory practices the form of, among other things, infe- Protection Clause prohibit Louisiana disparate impact cases rior schools for racial minorities, pri- from making it a crime for an African- equal employment opportunities vate clubs for whites, and unequal American passenger to sit in a "Whites Only" railroad car? Asked that ques- Equal Protection Clause access to good jobs in high-paying professions, resulting in a lack of role tion in Plessy v. Ferguson, 163 U.S. gender/race classifications models for minority children. 537 (1896), the Court said that the invidious discrimination On the other hand, opponents clause "could not have been intended Jim Crow laws point to the text of the Equal to abolish distinctions based upon legal parameters Protection Clause of the Fourteenth color, or to enforce social, as distin- prejudice Amendment, which provides that "No guished from political equality, or a race-conscious goals state shall ... deny to any person commingling of the two races upon racial quotas within its jurisdiction the equal protec- terms unsatisfactory to either." Just as the states and the U.S. Congress (for reverse discrimination tion of the laws." It is impossible, they argue, to advantage one individual on the District of Columbia school sys- separate-but-equal rule the basis of race without disadvantag- tem) required separate schools for M1===liZIIIIIMII11111111111111111 ing others who are not members of "colored" and white children, that race, which the Equal Protection Louisiana simply required the separa- Clause flatly forbids. Critics of race- tion of the two races in public con- conscious goals and quotas argue not veyances. True, African Americans only that they are unconstitutional, but could not sit in the white cars, but
3 4 UST CM'Y AVAIL AR' E 31 whites could not sit in the "colored" "reverse discrimination," an argument with his contention that university admission decisions must be made cars either. There was nothing that came to a head in the case of without regard to the racial or eth- unequal about that, according to the Regents of the University of California nic background of the prospective Court. v. Bakke, 438 U.S. 265 (1978), andin cases that followed. student. Influential Dissent The Medical School of the First, the Court said, although the Constitution does not permit the Justice Harlan, the lone dissenter in University of California at Davis argued school to employ a rigid quota system Plessy, objected that "everyone knows that the Equal Protection Clause does that the statute in question had its ori- not literally accord individual white that sets aside seats that whites may not compete for solely because of gin in the purpose not so much to arid African-American persons equal their race, the University is entitled to exclude white persons from railroad protection from racial discrimination, consider that "low grades and test cars occupied by blacks as to exclude but rather that it only renders official scores may not accurately reflect the colored people from coaches occu- racial discrimination constitutionally pied or assigned to white persons." He suspect if it involves discrimination by abilities of some disadvantaged stu- thought the law violated the Equal the white majority against the African- dents; and it may reasonably conclude Protection Clause. "There is in this American minority. Racial discrimina- that although their academic scores are lower, their potential for success in country," he wrote, "no superior domi- tion is not constitutionally suspect, the the school and the profession is equal nant ruling class of citizens. There is university argued, if its purpose is to or greater than that of an applicant no caste here. Our Constitution iscol- "benign"that is, if the discrimination with higher grades who has not been orblind, and neither knows nor toler- is designed to benefit rather than to similarly handicapped." A minority ates classes among citizens." disadvantage members of an histori- cally victimized group. Based on that applicant's race, in other words, can be a positive factor in admissions Brown and School Desegregation understanding of the Constitution, the decisionsit just cannot be the only Resonating Justice Harlan's dissent, a University set aside 16 of its 100 factor. string of cases were to find that edu- admissions seats for minority appli- Second, the Court said that, if an cational facilities for African Americans cants. Under this policy, minorities employer or institution can show that were not equal in a physical sense. In could compete for 100 seats, while it had discriminated against minority Brown v. Board of Education, 347 U.S. white applicants could compete for 84 applicants in the past, and that prefer- 483 (1954), a unanimous Court cited seats. ential treatment of minority applicants psychological studies to determine Alan Bakke was not admitted to in the present is "necessary to grant that "the policy of separating the races the "white" seats, although his grade- them the opportunity for equality is usually interpreted as denoting the point average and Medical College which would have been theirs but for inferiority of the negro group. A sense Admission Test scores were higher the past discriminatory conduct," a of inferiority affects the motivation of a than the average of regular admittees; quota system such as the one at issue child to learn.... We conclude that in both were much higher than those of in Bakke might be upheld. the field of public education the doc- the 16 minority admittees. He applied trine of 'separate but equal' has no for admission twice, and the school The typical affirmative action plan merely treats membership in a racial place. Separate educational facilities rejected him twice. He filed suit, alleg- are inherently unequal." While the rea- ing that the university's admission pol- minority as a plus when weighing the soning of the Court 'n this case is no icy violated his constitutional right to qualifications of competing candi- longer accepted, it was a landmark in equal protection by discriminating dates. By contrast, in City of Richmond v. Croson, 488 U.S. 469 (1989),the the school desegregation effort. against him on the basis of his race: the university would have accepted Court emphasized that racial quotas Quota System Struck Down: Bakke him if he had been African American must be carefully chosen to address only the effects of proven racial dis- But what of the other aspect of Justice and reie..ted him solely because he crimination by the very institution that Harlan's dissent in Plessythe notion was white. The Court, stressingthat now seeks to increase minority partici- of a "colorblind" Constitution' While the Fourteenth Amendment guaran- pation. One thing is clearthe last many people do endorse that view of tees equal protection to all "persons," word has not been spoken on how the Equal Protection Clause, many African American or white, struck othersboth African American and down the medical school's admission quotas can or should be used to whitedo not. It is this disagreement policy and ordered the university to redress discrimination. that underlies the debate over admit Bakke. It disagreed, however,
32 Affirmative ActionAdvantages? ...And Disadvantages? Civil Rights Act of 1991 From a policy standpoint, what are What are some of the disadvantages some of the advantages of employing of affirmative action? Does it tend to Winning job discrimination law- affirmative action in hiring and admis- create ill will on the part of the white suits became easier for workers. sions decisions? Is seeking a diverse majority, many of whom never under the Civil Rights Act of 1991. work force or student body a good in engaged in any discriminatory acts This law requires that, if an employer's hiring or promotion itself? If a medical school decides to themselves? Could such a policy admit a greater number of African detract from the accomplishments of practices and standards, such as Americans, who then go on to practice those who benefit from it? Could affir- strength or competency tests, medicine successfully, might those mative action be leading us away from seem fair but result in discrimina- tion, the employer must prove that doctors serve as role models for a colorblind society in which each minority youth who otherwise might individual is judged according to per- they are necessary to operate the not have ever seen or talked to an sonal abilities and accomplishments? business. In cases of intentional African-American doctor? Might the Is it fair to "punish" a white male job job discrimination based on sex, religion, national origin, or disabili- doctors be likely or willing to provide applicant who is qualified for and per- ty, it further gives the right to sue health care services in underserved haps desperately needs a job in order areas? Would affirmative action tdnd to benefit a minority applicant who for compensatory and punitive money damages in addition to, or to compensate minorities for having may be in better circumstances? How in lieu of, back pay and lost bene- been economically and educationally will these questions be decided, and disadvantaged as compared to the is it the courts, legislatures, or other fits. Before this act was passed, typical member of the white majority? institutions that should make such only racial discrimination victims decisions? could be awarded these additional damages. The act also provides for a jury trial at the demand of either party when charges are sought. Before this act, a judge decided job discrimination cases.
tJ1.) 33 Landmark Affirmative Action Cases University of California Regents v. Bakke, 438 U.S. 265 Johnson v. Transportation Agency of Santa Clara, 480 (1978). The Supreme Court struck down a medical U.S. 616 (1987). The Supreme Court upheld the Santa school's admission policy that set aside a specific number Clara County Transportation Agency's voluntary affirmative of places for minority applicants because the Court held action plan adopted to redress the underrepresentation of that the university had used race as the sole criterion for women in certain skilled job classifications. The Court determining who was admitted under its affirmative held that the promotion of a white female to road dis- action plan. The Court held that the university could use patcher over a white male who had a slightly higher race as one of the factors (but not the only factor) in the score in a competitive interview did not amount to admissions decision to promote student diversity. reverse discrimination.
United Steelworkers v. Weber, 443 U.S. 193 (1979). The Richmond v. Croson Company, 488 U.S. 469 (1989). The Supreme Court approved a voluntary plan between the Supreme Court ruled that the city of Richmond's set-aside labor union and the employer that, in order to correct an program for minority contractors violated the Fourteenth existing racial imbalance in craft jobs, provided for the Amendment's Equal Protection Clause because there was selection of one African American for every white chosen no showing that the city had engaged in discriminatory for a special training program. practices in the awarding of such contracts, and thus the program constituted a quota rather than a goal.
34 Equality and the Individual PROGRAM FOUR
What's Your Opinion? WHILE VIEWING THE PROGRAM Directions: Each of the following statements Directions: This program debates the use of affirmative action pro- deals with an issue of discrimination and will grams as legitimate responses to discrimination both in thework help you determine to what extent you take race place and in educational settings. A- you watch the program, think into account when making decisions. For each about these questions, following your teacher's instructions. Your item, Circle A for agree, U for undecided, and D teacher will tell you how to complete this activity at the end of the for disagree. program.
A U D 1 Private clubs and other exclusive 1. What is affirmative action? groups don't need to be concerned 2. What constitutional provision(s) is/are relevant in determining about having racial minorities as the judicial response to racial discrimination? members. 3. What difference does it make if the discrimination is de jure or A U D 2. You have applied for a job where de facto? 90 percent of the employees are members of your race. The inter- 4. What trade-offs must sometimes be made when affirmative viewer is not. You become a victim action programs aid in the selection of applicants for jobs or of discrimination when the inter- opportunities in higher education? Are these trade-offs justified? viewer hires someone of her own Why or why not?' race instead of you. 5. During the program, Professor Carter was asked to explain to a A U D 3. Lack of trust will keep police forces white applicant why the applicant was denied admission to of greatly mixed racial representa- Gateway University when a minority student under an affirmative tion from working as effective units. action plan was accepted. Professor Carter stated, "Like all Americans ... white Americans must learnas did black people A U D 4. It doesn't matter if a school has dis- to share the burden of allocating limited resources." What do you criminatory practices if minorities believe was Professor Carter's point? How have African never apply there anyway. Americans in the past borne such a burden? Do they still, along with other people of color? Can the ill effects of past discrimina- A U D 5.If the government didn't force inte- gration, it would never happen tion be eradicated without some unfairness tolerated? because people prefer to be with 6. What is the rationale for establishing an all-male, predominantly their own kind. African-American public school in Detroit? Who may be disadvan- A U D 6. You have been admitted to a med- taged by the establishment of such schools? Do all-male schools ical school that has an affirmative for African Americans involve the same kind of invidious discrimi- action program. The first day of nation found unlawful in the segregated schools established class a person of another race sits under Jim Crow laws? next to you. You can assume that 7. Should institutions be allowed to move to a racially selective pol- the person is not so qualified as icy for the purpose of increasing minority participatiowithout a you are. showing of past discrimination? How helpful is the Bill of Rights A U D 7. Racism is no longer a problem in (and other constitutional provisions) in resolving this issue? the United States if people of color work hard and apply themselves.
A U D 8. Government intervention has only worsened bigotry in our society.
35 and the others should provide sum- AFTER African American. It has no history of VIEWING THE PROGRAM discriminatory admissions practices. maries of the editorials' arguments. Which applicant does the admissions Have groups examine any of the edi- 1. Divide students into groups of director choose? torials and outline arguments for or three to role-play hypotheticals of b. The City of Pacifica has just insti- against the position taken that would their design, or to use the ones below. tuted an affirmative action plan to represent the interests of one of these Allow each student to choose one of increase the number of African organizations: the American Civil the following roles: mayor or admis- Americans on its police force, which is Liberties Union (ACLU), the National sions director, and accepted applicant 90 percent white, 8 percent African Organization of Women (NOW), or rejected applicant for a job or col- American, and 2 percent other. This is African-American Men in Unity, and lege admission. The rejected applicant a voluntary plan entered into to com- the School District of the City of is disputing the decision and wants it pensate for previous racial bias in the Detroit (where one such academy is reversed. Both sides should present selection and promotion of whites established). Each group should com- their positions based on the facts, with over African Americans. The chief of pile its collective arguments into a the denied applicant speaking first. police resigns in protest. Several can- position paper to share with the class. The mayor or admissions director may didates apply for the position. The Goodman, Ellen. Washington Post. 7 ask questions before rendering a final applicant pool is finally narrowed to September 7, 1991: A21. decision and stating reasons for it. one white and one African American. "Review and Outlook Editorial." Wall After, the class will have an oral vote Their qualifications are comparable Street Journal, 11 Nov. 1991: A1,2. on whether they agree with the deci- except that the white applicant scores African American Enterprise, February sion. Note that the students will have, two points higher on a physical exam. 1991:18 to flesh out each hypothetical situa- The city of Pacifica has a 35 percent tion, determining which is the disput- 3. During the discussion regarding a African American population. The ing applicant. white applicant's inability to accept his mayor of Pacifica has the authority to At Gateway University, a four-year denial of admission to Gateway a. appoint the chief. Whom does she public institution of higher education, University, Rhodes Scholar Goodwin choose? the incoming freshman class has been Liu stated: "There is no dean of admis- filled except for one seat. The director 2. If possible, make available to one sions in this country who would ever of admissions has applications from of your students Garrett v. Board of admit that if they had the same pool three equally qualified students. Their Education of the School District of the of applicants [from which] to pick grade-point averages, performances City of Detroit, 775 F.Supp. 1004 admittees twice, that they would pick on the SAT, extracurricular activities, (E.D.Mich. 1991). Have others the exact same persons." Have stu- and letters of recommendation are research the editorials listed and other dents write an essay explaining what indistinguishable. One student is newspaper editorials about whether this suggests about the admissions white, one is Asian American, and one all-male, predominantly African- process and whether it gives a legiti- is African American. Gateway's student American schools should be estab- mate claim of unfairness to any one of body presently is 84 percent white, 12 lished. The first student should share the students denied admission in sce- percent Asian American, and 4 percent quotes from the case with the class, nario 1.b. above.
36 runt Murder to. Ewe
BEFORE VIEWING THE PROGRAM
There are many complex issues to Two or Three Days Before Day of Program consider when examining our criminal For these activities, furnish each stu- Review the worksheet on page 43 justice system. Use any of the follow- dent with a photocopy of page 44. with students. Make sure that they ing activities to help your students Have grou0 of two or three students understand how to fill it out. The prepare for and benefit most from the follow the illustration on page 44 to worksheet should help students begin video program. construct a constitutional amendment to identify and discuss factual issues ladder using the fourteen principal and connect them with constitutional Early Orientation constitutional rights. At the same time, rights. Remind them not to write in 1. A few days before your class ask other students in groups of the their conclusion until after the pro- views the program, provide each stu- same size to imagine that sp,,ce gram ends. dent with a photocopy of pages invaders have taken control of the 30 -44. Assign pages 38-42 for read- government and are limiting the num- ing, perhaps in sections. ber of criminal justice rights to five. Ask them which five rights they would 2. All the legal terms listed on page 39 are used in the text, and many of keep and why. In both versions, the them are defined there. Ask some stu- groups will make presentations to the dents to locate where the words are class where they will show that they used, fashion definitions for them, and understand the nature of each right, post the definitions for the class's use. the scope of its protection, and the consequences if it was lost. 3. Stress that students should become familiar with the sequence of events in the investigation, prosecu- tion, and sentencing of a murder case suspect. They should also be able to list basic legal rights that may be implicated in the various stages of a murder case. These are organized in tables on page 39. Discuss the tables as a class, explaining any concepts or terms that give the students difficulty.
37 Criminal Justice: From Murder toExecution PROGRAM FIVE
allowed lying as a deceptive investiga- OVERVIEW OF THE PROGRAM be used as evidence in court because it was "unreasonably searched." tive technique. The Constitution In Criminal Justice: From Murder to doesn't protect gullibility, even though Execution, John Ford leads a distin- Part 2 (15:30): MirandaRights psychologically coerced suspects guished panel through the develop- This 9-minute segmr nt begins when could confess to crimes they did not ments in a hypothetical murder case moderator Ford tells the panel that a commit. Once in court, the police have from the discovery that 7-year-old woman has called the police saying, to tell the truth about any lies they Becky Carson has been sexually "My daughter goes to the same school told, and their suspects' confessions assaulted and brutally murdered, to that Becky went tothey were will be admissible. the ensuing investigation, arrest, trial, friends." Investigators' conversations and sentencing of Frank, one of two with and observations of Becky's Part 4 (32:00):Defending Frank suspected school custodians. friend Alice strongly suggest that Frank This 9-minute segment begins when At each stage of the hypothetical, and Hector should be brought in for moderator Ford says to Mr. Neal, the panelists examine the inherent questioning, but they are not yet "[Frank's] been indicted now." Frank's polarity between society's need, on under arrest. The officer recites their counsel finds out what facts the pros- the one hand, for protecting individu- Miranda rights. While Miranda v. ecution has and instructs him not to als against undue governmental intru- Arizona, 384 U.S. 436 (1966), limits Talk to anyone unless counsel is pre- sion and, on the other, for society's the power of police to question sub- sent. This will protect Frank's Sixth collective security through the govern- jects, and some panelists agree that Amendment right to counsel and pre- ment's diligent prosecution of crimi- Frank and Hector seem to have "more vent investigators from forcing more nals. At different times in our history, rights than the murdered child," oth- comments from him. As is customary, the courts have moved closer to one ers are persuaded of the need for Frank's attorney has him select his pole, then to the other. They have also Miranda in order to protect suspects, own defense: he did nothing but hold adopted hybrid or compromise posi- under the Fifth Amendment, from Becky on his lap from time to time. tions based on balancing the two being forced to testify against them- When Alice is questioned during interests. selves and to guarantee their right to the trial, she falters in her testimony counsel under the Sixth Amendment. and seems afraid to speak in Frank's Part 1(2:00): Illegal Search presence. The judge has the option of This 13.5-minute part begins when Part 3 (24:30): Legal Deceptions having her testify via close-circuit TV, moderator Ford says to the panel, This 7.5-minute segment starts when to which the defense strongly objects. "There's been a murder." When inves- moderator Ford says to Investigator tigators go to question school custodi- Donovan, "each time you ask him a Part 5 (41:00): Sentencing FrankA ans Frank and Hector about Becky question, Frank just sits very quietly Death-qualified Jury? Carson's death, they suspect that and shakes his head, nothing...." As This 10-minute segment begins when there is evidence of the crime in a part of the hypothetical, Donovan lies moderator Ford turns to Mr. Waksman gym bag on the floor. They have no in order to force Frank to confess, and says, "Well, the jury has heard search warrant, and, under the Fourth telling him that Hector is giving him Alice testify." Frank is convicted; he Amendment, which protects against up and that "the evidence guys" have will be sentenced in a separate pro- unreasonable search and seizure, they found Frank's semen in Becky's body. ceeding. Panelists consider the conse- haven't enough cause to search the Frank, apparently on the verge of con- quences of "death-quaVied juries": In hag but instead are allowed only to fessing, makes an incriminating state- order to ensure that the death penalty observe what is in plain sie.. When ment. While some panelists object, is possible, courts must disqualify any one officer nudges the ba,,; open an saying that police today substitute jurors who object to it. Panelists criti- inch or two, he sees a doll that he sus- more sophisticated psychological pres- cal of this procedure say that it makes pects to be Becky's. Although the bag sure for physical abuse to force con- juries like Frank's death prone, and may be taken into custody, it may not fessions, the Supreme Court has probably conviction prone.
38 Part 6 (51:00): Writ of Habeas Corpus Murder Case Procedures This 4-minute segment begins when These are the basic legal procedures that take place in moderator Ford says, "Well, that testi- the investigation, prosecution, and sentencing of a mony has been allowed." Frank murder case. receives the death penalty. The 1. Search and seizure, including probable cause, defense's next step is to petition for a search warrants, and the Exclusionary Rule writ of habeas corpus if the defense 2. Interrogation and confession, including Miranda can show that Frank was denied any warnings and deceptive interrogation practices of his federally protected constitution- 3. Voir dire of the jury (see program 3) al rights in the course of the proceed- 4. First trial phase (adjudication of guilt) ings against him. If this writ is granted, 5. Second trial phase (sentencing) he will be set free. The program con- 6.Appeal in state court cludes with panelists discussing con- 7. Federal habeas corpus review of state court pro- troversies surrounding habeas corpus: ceedings, and its limitation the "Great Writ," and probably our most important guarantee against executive action, but one that has Rights in Murder Cases been used to free the guilty as well as the guiltless. These basic legal rights may be implicated in the inves- tigation, prosecution, and sentencing of a murder case.
1. The Fourth Amendment right to be free from unreasonable searches and seizures 2. The Fifth Amendment right not to be compelled to testify against oneself 3. The Fifth and Fourteenth Amendment right to due process of law 4. Various Sixth Amendment rights, including the right to counsel, to jury, and to be confronted with adverse witnesses 5.The Eighth Amendment right not to be subjected to cruel and unusual punishment 6. The Article I right to a writ of habeas corpus
Special Terms
adjudication indictment adverse witness mere possession aggravating factors mitigating circumstances beyond a reasonable doubt preliminary hearing bifurcated trial preponderance of the evidence capital defendant polarity_ deceptive interrogation practices probable cause double jeopardy proportionality review Exclusionary Rule reasonable articulable suspicion executive action search and seizure grand jury search warrant habeas corpus victim impact statements implicate
BEST COPY AVAILABLE 39 3 frightened friend Alice may testify via BACKGROUND care to respect the Fourth TV, the defense attorneys object. Why FOR A MURDER CASE Amendment. For example, all police officers in the program hypothetical might this be so? know that their "hunch" did not The Sixth Amendment, in addition Exclusionary Rule: A Deterrent to amount to the probable cause neces- to guaranteeing all criminal defen- Police Misconduct? sary to search the suspect's gymbag. dants the right to have an attorney The Exclusionary Rule, providing that As with the Exclusionary Rule, the represent them, provides that they the prosecution may not use evidence Miranda debate is not so much over have the right to be confronted with seized in violation of the Constitution the rights guaranteed by the Bill of adverse witnesses. Frank's defense or a statute, was fashioned in 1914in Rights as over the sanctions the attorneys reason that Alice's credibility the case of Weeks v. United States, Supreme Court has decided to impose cannot be assessed unless she is 232 U.S. 383 (1914). This rule exem- for a police officer's violation of those forced to testify in front of Frank, and plifies the sometimes conflicting con- rights. However, a confession can be that, if the testimony is given on TV, cerns about bringing criminals tojus- used if, for example, the defendant the jury may not be able to see the tice and protecting the defendant's chooses to testify in his or her own gentle efforts the defense uses in rights, based on a third concernthe defense. In that case, a prior confes- questioning the young witness. As one Fourth Amendment right of all citizens sion could be used to discredit the panelist notes, these cases are extraor- to be free from unreasonable searches defendant's in-court testimony dinarily difficult for both the defender and seizures. The Supreme Court (Oregon v. Haas, 420 U.S. 714 and the defendant, who under no cir- handed down the Exclusionary Rule (19751). But, once again, the notion is cumstances want to be viewed as because of its many cases of alleged that if the police know that any con- intimidating the child. police misconduct. The rule was fessions they wrongfully obtain will be designed to deter federal law enforce- suppressed, they will take care to Mapp v. Ohio, ment officers from violating the Fourth 367 U.S. 643 (1961) respect all defendants' Fifth Amendment and thus to protect indi- Amendment rights. As the program Dollree Mapp lived in Cleveland, vidual's rights. The Exclusionary Rule shows, the police have in fact devel- Ohio. Police arrived at her house was first applied to the states inthe oped other interrogation techniques and asked her if they could search case of Mapp v. Ohio, 367 U.S. 643 for obtaining confessions in a constitu- for a fugitive they believed was hid- (1961). It has also been extended to tional manner. ing there. She would not let them enforce the Fifth Amendment's protec- Is the Exclusionary Rule the only in without a search warrant. The tion against self-incrimination and the conceivable way of enforcing the police waited until more officers Sixth Amendment's right to counsel by Fourth Amendment? Is the Court's arrived; then they broke down the barring use of statements taken in vio- decision to require Miranda warnings front door. When Mapp asked to lation of those provisions. the only conceivable way of enforcing see a warrant, the policeshowed the Fifth Amendment? What other her a piece of paper that she could A Question of Sanctions approaches might the Court take? Why riot read. She took the paper and The controversy is not so much over has the Court decided to "punish" the put it in the front of her dress. The the Fourth Amendment's require- prosecution for police officers' or pros- police held her down and removed ments as the Supreme Court's deci- ecutors' unlawfulness? Is there any the paper. They then handcuffed sion that if a police officer violates a validity to claims that some people her and kept her in an upstairs bed- suspect's rights in the course of a confuse the criminal justice system's room while they searched. search and seizure, the prosecuticn is search for truth with a game in which The police found no fugitive, barred from using that evidence, no it is somehow "unfair" to trick a guilty but they did find some obscene pic- matter how crucial it may be or how person? This program struggles with tures in the bottom of a trunk in the heinous the crime. Although the rule many of these questions, to which basement. Mapp said they in fact operates so as to allow a crimi- there are no simple answers. belonged to a former tenant who nal to go free "because the constable had left the trunk there. She was has blundered," it is thought to oper- convicted of possession of obscene TV Testimony ate as an effective deterrent to police material and sentenced to up to A recent Supreme Court ruling permits misconduct. If the police know that seven years in prison. No warrant children to testify via closed-circuit the consequence of an illegal search was produced at her trial. Shefinal- and seizure is the loss of valuable evi- television. In the hypothetical, when ly won on appeal. dence, they are likely to take great the trial court reasons that Becky's
40 .13 Bifurcated Trial Miranda v. Arizona, 384 U.S. 436 (1966) In order to guarantee capital defen- Scope dants' Eight Amendment rights, limit In Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme Court ruled that, the jury's arbitrary discretion in death unless suspects are told that they have certain rights, nothing that they say penalty cases, and provide for consid- may be held against them at their trials. They have the right to remain.silent, eration of defendants' character for and they must be told that they may have an attorney present during all ques- sentencing, the Court requires states tioning, and that the court will appoint an attorney if they can't afford one. If to conduct bifurcated trials, or trials the suspect requests an attorney, all questioning must cease until one arrives. with a separate sentencing hearing Later Supreme Court decisions have limited the scope of the Miranda rul- after a capital defendant's trial and ing. For example, the Court ruled in 1971 that, to prove the defendant is lying, conviction. The guilt phase excludes a confession obtained in violation of the Miranda ruling may be used at atrial. certain character and other possibly prejudicial information, while the sen- Right Against Self-incrimination tencing phase allows the defendant's Although in some ways narrower in scope than the Exclusionary Rule, the past to be considered. For instance, Court's 1966 decision in Miranda v. Arizona was as controversial as the one in victim impact statements, showing the Mapp. Whereas the Exclusionary Rule bars any evidence obtained in violation harm done to a victim's family or of the Constitution or 'a statute, Miranda excludes only statements obtained friends, are permissible in the sen- from a suspect while being questioned in police custody, and then only if the tencing phase. suspect hasn't been warned of the rights or, if warned, hasn't understood them. Like the Exclusionary Rule, the Miranda warnings do not appear in the Aggravating Factors Constitution but were fashioned by the Supreme Court to enforce an impor- The prosecution bears the burden of tant constitutional provisionin this case, the Fifth Amendment, which says proving beyond a reasonable doubt that no one may "be compelled in any criminal case to be a witness against that the defendant whom it wishes to himself." Because this right against self-incrimination is viewed as so basic, the execute has committed or exhibited at Court has concluded that any waiver of it must be voluntary and "knowing," least one aggravating factor that is list- and that it is not a knowing waiver unless the suspect has heard and under- ed in the state's death penalty statute. stood the Miranda warnings before deciding to talk to the police. Typically, death penalty laws require the jury to specify one of these.
Death Penalty: Special Procedures In part because the Constitution elsewhere contem- plates capital punishment as a permissible penalty, the Even a convicted murderer retains some constitutional Eighth Amendment's ban on cruel and unusual punish- rights, and chief among these is the Eighth Amendment ments was undoubtedly intended to ban the punishments right to be free from "cruel and unusual punishments." that were thought to be cruel and unusual in 1791 The prosecution, and a number of program panelists, namely, deliberate torture. Several Justices have believed would give Frank the death penalty after his conviction; that capital punishment is "cruel and unusual punish- but because of the final and ultimate nature of this penal- rrient" in every instance and, hence, unconstitutional. On ty, it is subject to protective procedures that other penal- the other hand, a majority of the Supreme Court has ties are not. The Supreme Court in Gregg v. Georgia, 428 determined that the Constitution does permit executions U.S. 153 (1976) (plurality opinion), has said capital pun- for a limited category of murders. ishment must not be "cruelly inhumane or disproportion- In a number of cases, the Court has declared that the ate to the crime involved." To avoid "the influence of meaning of the prohibition of cruel and unusual punish- undue passion or prejudice," the trial determining guilt ment must be derived from the "evolving standards of must exclude certain evidence of the defendant's past that decency that mark the progress of a maturing society." might prejudice the jury, and the jury must be instructed Can an argument be made that, although the death penal- on any lesser included offense, or a less-serious crime ty was not cruel and unusual in 1791, it is today? Can provable by simile; facts. In a case of murder, for example, another be made that, since the original meaning of the manslaughter and involuntary manslaughter might be put phrase is clear, the Supreme Court ought not to take upon forward. itself to give the phrase new meanings based on its sense of our current "standards of decency"?
41 Aggravating factors include the seri- State Appeals tice process, the defense must show ousness of the crime or the incorrigi- Many states provide for automatic that one of the defendant's constitu- bility of the defendant, shown perhaps appeal to the highest state court, tional rights was violated at trial. by previous crimes of violence. The allowing judges to check for any influ- In the past, prisoners have filed Court has held that the death penalty ence of passion or prejudice, as well new writs alleging violations of other is not unconstitutional for persons six- as to assure that the evidence sup- constitutional rights after their first or teen years old at the time of the ports the aggravating factors the jury subsequent writ was denied, and the offense. specified, and that the sentence has question arose as to how many been handed down in cases involving opportunities a death-sentenced per- Mitigating Circumstances similar facts and circumstances (called son should have to question the trial The defense then may introduce an "proportionality review"). and sentencing. In order to limit the unlimited number of mitigating cir- number of writs, today the defendant cumstancesreasons why the jury must include all claims in the first writ should be lenient. These might Multiple Habeas Issue unless able to show good cause for include a defendant's impoverished After the defense has completed not doing so. or abusive childhood circumstances appeals through the state court sys- or victim impact statements. The jury temand perhaps asked the Supreme must balance these with the prosecu- Court to grant reviewit may take tion's presentation and may deliver a death penalty cases, like other cases, sentence of death only if the aggravat- to the federal courts through a writ of ing factors outweigh the mitigating habeas corpus. For the federal courts circumstances. to intervene in the state's criminal jus-
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42 Criminal Justice: From Murder to Execution PROGRAM FIVE
WHILE VIEWING THE PROGRAM Select one case fact from the program overview and trace the discussion about it throughout the programfollowing the worksheet format below. Don't write in your conclusion until after the program is over.
Applying Constitutional Rights to Case Facts
Fact: Possible suspect's gym bag on floor in front of police could contain important evidence.
Issue: Should police search person's personal effects on hunch?
Right: 4th Amendment: person's effects secure from unreasonable search
Arguments for Searching:
a serious crime has been committed
could help prevent further harm by confirming suspicions
could lead to other evidence that would be admissible
will probably lose this evidence anyway if don't seize, illegally or otherwise
Arguments against Searching:
person's effects are protected by the Constitution
evidence would become inadmissible
evidence may be only means to convict suspect
police need more than a hunch; need probable cause to search bag
respecting the Constitution is as important as this case
Conclusion:
43 Criminal Justice: From Murder toExecution PROGRAM FIVE
Climbing the Amendment Ladder Directions: Use the numbers from each of these fourteen principal constitutional amendment rights pertaining to the criminal process to rank the rights from most important to least impor- tant on the ladder's rungs.
1. right to obtain a writ of habeas corpus (Art. I, sec. 9, cl. 2)
2. right to freedom from unreasonable search- es and seizures (4th Amend.) 3. right to presentment or indictment of a grand jury for serious crimes (5th Amend.) 4. right to freedom from double jeopardy (5th Amend.) 5. right not to be compelled to be a witness against oneself (5th Amend.) 6. right to due process of law (5th and 14th Amend.) 7. right to a speedy and public trial (6th Amend.) 8. right to an impartial jury in district where crime was committed (6th Amend.) 9. right to be informed of the nature and cause of the accusation (6th Amend.)
10. right to confront adverse witnesses (6th Amend.) 11. right to summon witnesses in one's favor (6th Amend.) 12. right to effective assistance of an attorney (6th Amend.) 13. right not to have excessive bail imposed (8th Amend.) 14. right to be free of cruel and unusual punish- ment (8th Amend.)
44 AFTER search of the trunk go beyond looking 4. Have some students develop and VIEWING THE PROGRAM for a fugitive? (4) On an emotional debate reasons why the opportunities level, how does the Mapp case com- death-sentenced persons have to file 1. Have students extend the work- pare with the case in the hypothetical? writs of habeas corpus should or sheet they filled out during the pro- (The key difference is that the former should not be limited. gram by preparing a formal paper in arouses our sympathy for the police which they state their conclusion as a and against the suspect, while the lat- proposition (e.g., "The police should ter arouses our sympathy for the be able to search a person's effects defendant and against the police.) left in public on a hunch that the per- What changes in the case might make son committed a crime"). Next, the you change each of the above students should identify and submit answers? arguments from the program, their 3. As if your students were attor- reading, and their own reasoning for neys, ask them to prepare and present or against their proposition. closing speeches by the prosecution 2.A summary of Mapp v. Ohio, 367 or the defense against or for the U.S. 643 (1961), appears on page 40. teenager in this modification of the In an essay, have students assess the video's hypothetical. The youth is Exclusionary Rule in light of this case, faced with a possible death penalty. in which the defendant was not Students may add any facts that do engaged in the crime the police were not conflict with what's stated here. investigating. Students might discuss Joe, Frank's sixteen-year-old part- these issues: (1) Should the obscene time assistant custodian, has also materials have been excluded from been convicted of Becky's murder. Jim Mapp's trial? (If they had been exclud- has no previous record, but he was ed, there would have been no evi- expelled from high school for truancy. dence to convict her.) (2) Could the His parents are dead, and his only liv- police have gotten a search warrant? ing relative, a sister, is serving time for (3) Even with a warrant, did the theft.
45 EDUCATIONAL RESOURCES Persistent Problem in Defining and Prosecuting Rape." Criminal Justice Dash, Samuel. "Can the Bill of Rights (American Bar Association Section of Survive the Crisis in Criminal Justice?" LIFE AND.CHOICE Criminal Justice) 7, no. 2 (Summer Update on Law-Related Education AFTER ROE v. WADE 1992). (American Bar Association Special Mohr, James C. Abortion in America: Committee on Youth Education for Citizenship) 14, no. 1 (Winter 1990): The Origins and Evolution of National "Naming Names: Should the Victims Policy, 1800-1900. Oxford: Oxford of Rape Be Identified?" Newsweek, 29 7-10. University Press, 1978. April 1991. Hall, John C. "The Constitution and Criminal Procedure." This Constitution: VanBurkleo, Sandra F. "The Right to Raphael, Alan. "Rape Victims' Privacy A Bicentennial Chronicle (Project '87 Privacy." In By and for the People: Rights vs. Freedom of the Press: The Constitutional Rights in American Florida Star v. B.J.F." Preview of of the American Historical Association History. Edited by Kermit L. Hall. United States Supreme Court Cases and American Political Science Association) (Spring/Summer 1988): Arlington Heights, Ill.: Harlan (American Bar Association Division for Davidson, 1991.113-32. Public Education), no. 11 (1988-89 53-57. Term): 315-16. Robbins, Ira. Habeas Corpus THE FIRST Checklists. Deerfield, Ill.: Clark . AMENDMENT EQUALITY AND Boardman Callaghan, 1994. (Updated AND HATE SPEECH THE INDIVIDUAL annually) "The Case for Hate." Life 14, no. 13 "Affirmative Action." American Civil (Fall 1991): 60-66. (Special Bill of Liberties Union (ACLU) Briefing Paper Rights issue) No.' 17, New York, 1993.
ADDITIONAL RESOURCES Education for Freedom: Lessons on Jackson, Donald W. Even the Children the First Amendment for Secondary of Strangers: Equality Under the U.S. "Abortion: Planned Parenthood of School Students (6-12). Denver: First Constitution. Lawrence, Kans.: Southeastern Pennsylvania v. Casey" Amendment Congress, University of University Press of Kansas, 1992. Update on the Courts (American Bar Colorado at Denver, 1991. Association Special Committee on Youth Education for Citizenship) 1, no. Katz, Stanley N. "Constitutional 1 (Fall 1992): 14-17. "First and Foremost." Life: 88-91. Equality." This Constitution: A Bicentennial Chronicle (Project '87 of "Employment Law: Teresa Harris v. "Hate Speech on Campus." American the American Historical Association Forklift Systems, Inc." Update on the Civil Liberties Union (ACLU) Briefing and American Political Science Courts 2, no. 2 (Winter 1994): 10-11. Paper No. 16. New York, 1993. Association) (Spring/Summer 1988): 31-35. "First Amendment: R.A.V. v. St. Paul." Hess, Diana. Punishing Hate- Update on the Courts 1, no. 1 (Fall Protecting Expression: Democracy's Rosenfeld, Michel. Affirmative Action & Dilemma. Supplementary text for Justice: A Philosophical & 1992): 9-11. grades 9-12. Chicago: Constitutional Constitutional Inquiry. New Haven, Rights Foundation Chicago, 1994. Conn.: Yale University Press, 1991. "Jury Selection: J.E.B. v. T.B." Update on the Courts 2, no. 2 (Winter1994): 6-9. Murphy, Paul L. World War 1 and the CRIMINAL JUSTICE: Origin of Civil Liberties in the United FROM MURDER Lieberman, Jethro K. The Enduring States. New York: W. W. Norton, 1979. TO EXECUTION Constitution: A Bicentennial Carr, James. Criminal Procedure Perspective. St. Paul, Minn.: West TWO ACCUSED: Handbook. Deerfield, Ill.: Clark Publishing Company, 1987. CHRONICLE OF A RAPE TRIAL Boardman Callaghan, 1994. (Updated Andrias, Richard T. "Rape Myths: A annually),
46 Patrick, John J. The Young Oxford KEY ORGANIZATIONS Center for Civic Education Companion to the Supreme Court of 5146 Douglas Fir Road the United States. New York: Oxford Among the many organizations with Calabasas, CA 91302 University Press, 1994. Bill of Rights education programs and 818/591-9320 resources are the following: Coordinates the national competition Patrick, John J., and Robert S. Leming. on the Constitution and Bill of Rights Resources for Teachers on the Bill of American Bar Association called "We the People The Citizen Rights. Bloomington, Ind.: ERIC and the Constitution." Special Committee on Youth Clearinghouse for Social Education for Citizenship (ABA/YEFC) Studies/Social Science Education, ERIC Clearinghouse for Social Studies/ 1991. 541 N. Fairbanks Court Chicago, IL 60611-3314 Social Science Education (ERIC/ChESS) The Research Companion: Supreme 312/988-5735 2805 E. Tenth Street, Suite 120 Court Decisions. Garden City, N.Y.: Can provide nationwide information Bloomington, IN 47408 Focus Media, 1987. Computer on Bill of Rights and law-related edu- software. cation (LRE) programs, materials, and 812/855-3838 contact persons. The ERIC/ChESS clearinghouse has information on Bill of Rights educa- Schimmel, David M., and Lewis tional resources for social studies Fischer. Freedom, Fairness, and American Historical Association (AHA) educators. Equality. Washington, D.C.: Phi Alpha 400 A Street, SE Delta Public Service Center, 1994. Washington, DC 20003 National Archives 202/544-2422 Stone, Geoffrey P., Richard A. Epstein, Education Branch (NEEE) Washington, DC 20408 and Cass R. Sunstein, eds. The Bill of American Political Science Association Rights in the Modern State. Chicago: (APSA) 202/501-6172 University of Chicago Press, 1992. Division of Education Produces educational materials on Bill of Rights and can direct educators to 1527 New Hampshire Avenue, NW Update on Law-Related Education regional archives. Washington, DC 20036 (American Bar Association Special 202/483-2512 Committee on Youth Education for Citizenship) 15, no. 1 (Winter 1991). The AHA and APSA codirected the Bill 3 (Special Law Day Issue on the Bill of FURTHER INFORMATION Rights) of Rights Education Collaborative. For further information on Bill of Rights education programs and Update 15, no. 3 (Fall 1991). resources, contact: (Subtitled "Extending the Bill of Rights: American Bar Association The Civil War Amendments") National Law-Related Education Resource Center Special Committee on Youth Education for Citizenship (ABA/YEFC) 541 N. Fairbanks Court Chicago, IL 60611-3314 312/988-5735
47 That Delicate Balance 11: Our Bill ofRights Program 1= Life arid ChoiceAfter Roe v. Wade Refer to seating charts in this guide for participants Program 2 = The First Amendment and HateSpeech Program 3 = Two Accused: Chronicle of a RapeTrial in each program. Program 4 = Equality and the Individual Program 5 = Criminal Justice: From Murder toExecution Series Participants Program Name Title (at time of filming) 2,3 Floyd Abrams Attorney, New York State Legislative Director, National Right to LifeCommittee 1 Burke Balch 1 Director, ACLU Reproductive Freedom Project Janet Benshoof 2 Director, Campus & Anti-Violence Projects, National Gay &Lesbian Task Force Kevin Berrill 1 Counsel, National Right to Life Committee James Bopp, Jr. 1,2,5 Scholar, American Enterprise Institute; former Judge, U.S.Court of Appeals Robert Bork 2 Commissioner, New York City Police Lee Brown 5 Special Deputy Attorney General, North Carolina Joan Byers 1,4 Professor, Yale Law School Stephen Carter 4 Dean, University of California at Berkeley (Boalt)School of Law Jesse Choper 5 Director, Center for Child and Family Development,Washington University David Corwin 5 Investigator, Monmouth County Prosecutor's Office Michael Donovan 3 Chief, Sex Crimes Prosecution Unit New York DistrictAttorney's Office Linda Fairstein 5 Trial Attorney, Court TV Anchor (Moderator) John R. Ford 1,4 U.S. Representative, Massachusetts Barney Frank 2 Professor, Whittier College Law School Mary Ellen Gale 2 Student, Columbia University Eric Garcetti 1,3,4 President, The Hastings Center Willard Gay lin 1,3,4 Professor, New York University Law School Stephen Gillers 5 Chief of Police, Charleston, South Carolina Reuben Greenberg 4 Executive, Director, Center for Individual Rights Michael Greve 1,2 Journalist, Village Voice Nat Hentoff 4 Professor, Brooklyn Law School Henry Holzer 1,2 U.S. Representative, Illinois Henry Hyde 1 Chief, Reproductive Endrocrinology, University of UtahMedical Center Kirtly Parker Jones 2,4 Judge, U.S. Court of Appeals Nathaniel R. Jones 4 Staff Attorney, National Organization for Women LegalDefense and Education Fund Ruth Jones 3 Judge, U.S. District Court John Keenan 2,4 Professor, Harvard Law School Randall Kennedy 3 Correspondent, 60 Minutes Steve Kroft 1 former Governor, State of Vermont Madeleine Kunin 1,2,5 Columnist, The New York Times Anthony Lewis 3,5 Jack Litman Attorney, New York 4 Rhodes Scholar, Oxford University Goodwin Liu 5 Professor of Psychology, University of Washington Elizabeth Loftus 4 Assistant Professor of Political Science, ColumbiaUniversity Carlton Long 1 District Attorney, Milwaukee County E. Michael McCann 2 Professor, Harvard Law School (Moderator) Arthur Miller 3,5 Editor, The New York Post Jerry Nachman 3,5 Attorney James Neal 1 Professor, Harvard Law School (Moderator) Charles R. Nesson 3 Managing Editor, The Courier-Journal, Louisville Irene Nolan 4 Professor, Harvard Law School (Moderator) Charles Ogletree, Jr. 1,2 Carrie Saxon Perry Mayor, Hartford, Connecticut 1,3,4 Columnist, The New York Times Anna Quindlen 5 Judge, U.S. District Court H. Lee Sarokin 2,3,4,5 Justice, U.S. Supreme Court Antonin Scalia 3 Partner, Sawyer Miller Group John Scanlon 2 President, Yale University Benno Schmidt 5 Partner, Sheppard and White, P.A William Sheppard 3,5 Assistant U.S. Attorney, Southern District of Florida Leah Simms 3,5 Justice, New York State Supreme Court Leslie Crocker Snyder 1,2 Kenneth Starr U.S. Solicitor General 2 Nadine Strossen President, ACLU 3 Attorney, New York Brendan Sullivan, Jr. 3 Professor, Harvard Law School (Moderator) Kathleen Sullivan 2 Associate Dean, University of Minnesota LawSchool Gerald Torres 4 President, College of William and Mary Paul Verkuil 5 Assistant State's Attorney, Dade County, Florida David Waksman 4 Clifford Watson Principal, Malcolm X Academy, Detroit, Michigan 48 That Delicate Balance II: Our Bill of Rights
Key Constitutional Protections and Concepts
Program
1 2 3 4 5
First Amendment Freedom of assembly Freedom of expression Freedom of speech Freedom of the press
Fourth Amendment Search and seizure
Fifth Amendment Protection against self-incrimination Due process of law
Sixth Amendment Right to confront accusers Right to a speedy and public trial
Eighth Amendment Cruel and unusual punishments
Fourteenth Amendment Due process of law Equal protection
Affirmative action
Federalism
Right of privacy
Right to travel
Symbolic speech
Women's rights
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