Constitutional Law II (80%) Spring Term 2014: Santa Barbara & Ventura Stanislaus Pulle, Dean QUESTION #I
The Los Angeles High School Baseball Club (C/rb) conducted a fund-raiser whereby advertising was offered to local area businesses in the form of business signs to be erected on a perimeter fence at the nearby field belonging to the Los Angeles High School (1/S).
The Club itself posted a large " Peace & Meditate" sign that contained the following message: "For Peace in Our Day Pause and Meditate on These Principles To Live By!" and beneath it was included the Ten Commandments. Alongside this display, Club had several posters with quotes of non-violence from such individuals as Mahatma Gandhi, Nelson Mandela and Martin Luther King.
Among the private advertisements on the fence was a poster of a meditating Buddha paid for and placed by a local temple (Temple) with its website imprinted on it.
HS ordered Club to remove its Ten Commandments sign but it refused to do so. HS removed the Buddha poster while other business signs remained.
In protest of the Club sign, one student, (Tommy) showed up wearing a Marilyn Manson T-shirt. The T-shirt had a face of Jesus on the front and on the back the word "believe" was printed with the letters "lie" highlighted. Q.{OTE: Marilyn Manson is a shock-rock star who took his stage name from Marilyn Monroe and mass-murderer Charles Manson and his controversial band is named Marilyn Manson). Tommy's action led to a shouting match with some fellow students.
Tommy was ordered by the principal of HS to tum the T-shirt inside out, go home, or leave school and be considered truant. The principal relied on a school disciplinary rule which among other things prohibited the use of language or the wearing of clothing on school property that is "vulgar, offensive and contrary to the educational mission ofthe school." He complied.
l. Club and Temple bring suit against HS in federal district court alleging a violation of their rights of free speech. In defense, HS argues they needed to make sure they would not be in violation of the Establishment of Relieion Clause. Discuss.
2. Tommy sues HS claiming a violation of his rights of free speech and that the school disciplinary rule is unconstitutionally vague and over-broad. Discuss.
(Assume proper standing has been met in all cases) Constitutional Law II (80%) Spring Term 2014: Santa Barbara & Ventura Stanislaus Pulle, Dean QUESTTON #2
Arts & Crafts (A&C) is small non-profit state licensed vocational rehabilitation college in District of Columbia. It teaches students with physical and/or mental impairment to leam graduate skills that would help them find gainful employment.
Students attending A&C receive federal grants that account for 50/o of its operating budget and must submit annual audited statements of how these monies were spent. Nearly all of A&C's students reside in the wealthy DuPont Circle of D.C
Under a federal law enforced by the U.S. Dept. of Education, A&C is required as a condition of continuing grants to make "good faith" efforts to have no less than twenty-five percent of its student body to be of Afro-American and Hispanic origin. To insure "good faith" compliance, A&C is subject to govemment monitoring whereby a govemment monitor reviews all applicant files for admission.
Recently, its popular long term director Jane wrote a letter to the U.S. Attomey General's Office complaining that the govemment monitor had a conJlict of interest with one of the Board members who is the sister of the monitor and that this Board member is attempting to exert undue influence in personnel decisions. Jane who had been with A&C for five years was fired by its Board of Directors and was replaced with a new director.
Students were angry and upset over Jane's firing. There was a meeting in the college auditorium to explain to students why she was fired. At this meeting one student, Jessica, painted a Nazi swastika sign on an auditorium glass pane window. Jessica was promptly ejected from the auditorium and dismissed from college for violating college rules against vandalism and graffiti on college property.
Discuss each of the followins claims filed in federal district court:
1. A&C seeks to declare the twenty-five percent hiring quota unconstitutional.
2. Jane claims violation of her First Amendment employee rights of free speech and violations of procedural due process.
3. Jessica claims violation of her rights of free symbolic speech.
(Assume proper standing in all cases. Do not discuss the doctrine of vagueness or substantial over-breadth in this question) ISSUE SHEET: QUESTION #I SPRING 2014: (Santa Barbara and Ventra) Dean Stanislaus Pulle CLUB v, HIGH SCHOOL
Under the doctrine of selective incorporation certain amendments made applicable to the states through the liberty phrase ofthe due process clause of the l4'n Amendments. This includes all of the 1'r Amendment on the basis that such rights lie at the base of all our civil and political institutions and hence are incorporated into the states.
ARGUMENTS FOR CLUB Free Speech of Students
The permissible scope of the speech depends on the character of the forum. This involves student speech on school property.
Public students do have rights of free speech but their rights are not co-extensive with those of adults in public. Proper content neutral rules of discipline, inculcating civic virtues, and rules prohibiting the advocacy of criminal conduct or the use of profane and vulgar language in the classrooms, student assemblies, offtces and corridors are all valid restrictions.
And any speech, without reference to content, that may cause a disruption of academic studies, a central mission ofthe school, may be validly prohibited.
Three types of fora have been identified. In traditional fora (streets, sidewalks, and parks) any content-based restriction is subject to strict scrutiny whereby govemment must show a compelling state interest to justify such content prohibition (Schenck'. "Clear and Present" Danger Test and Brandenbere: "lncitement to imminent Lawless Action" Test) and the means used must be nanowly tailored to advance this purpose. If the restriction is content-neutral, it must be (a) reasonable with respect to time, place, and manner; (b) there must be a significant govemment interest that is being served; (c) it must be a narrowly tailored to achieve such an objective, and (d) there must be ample altemative channels of communication.
*TRADITIONAL FORUM analysis is not an issue here because it is not speech in a traditional forum. (\QIE: Srudents are not required to write on this).
Non-Public Fora, selective access is accorded to speakers and any reasonable restriction compatible with the use of the forum and one that is unrelated to viewpoint is allowed. (Example: airports)
*NON-PUBLIC FORUM analysis is not an issue here because it is speech that does not involve a "non-public forum." (NQTE: Students are not required to write on this). In DESIGNATED OR LIMITED PUBLIC FORA govemment allows for general access that may be limited to subject-matter or speaker identity. In such instances, absent viewpoint discrimination, access to the forum is entitled to all speakers within the class of those elieible to use it.
This involves baseball field and the High School Club has been allowed to solicit advertisements of commercial speech. Since this involves a the opening of a forum (designated or limited public form) for the limited use of raising funds for its baseball team, the school may not engage in content-based restrictions
Courts have held that restrictions on religious speech are viewpoint based. Therefore, Club's display of the Ten Commandments beneath its Peace & Meditate poster is protected speech.
ARGUMENTS FOR HIGH SCHOOL Endorsement of Reliqion
School-Sponsored Speech
The High School will claim that since this is a school-owned playground, and monies are solicited in the name ofthe school to help its football team, parents, children, and the public will believe this is a school-sponsored event.
Courts have used a three-part (ZEMON TEST) inquiry.
l. The contested law or practice must have a secular purpose
2. The principal or primary effect of the law must be one that neither advances nor inhibits religion; and
3. The statute must not foster "an excessive entanglement with religion."
With respect to religious-themed display of the Ten Commandments, TWO PRINCIPLES guide constitutional analysis on whether or not the practice meets the "secular" prong of the Lemon Test.
(a) The "secular" prong is not satisfied if the particular physical setting ofthe display has the effect on a reasonable observer who, aware ofthe history and context of the forum or governmental property, will perceive the display as an endorsement of religious beliefs.
(b) The requirement ofa secular purpose is not violated if passive religious displays have a historical purpose even ifthey include a message consistent with a religious screed. The contextual setting is central to these inquiries. This was not a captive audience such as a classroom setting or auditorium. Since the Ten Commandments were posted as part of a general theme of Peace and Meditation along with other famous figures of non-violence, a reasonable person aware of the fact that this was a fundraiser from monies in retum for ads, this will tikely not be viewed as an endorsement of religion.
TEMPLEv. HIGH SCHOOL
ARGUMENTS FOR HIGH SCHOOL
High School will offer the same arguments as to why it wanted club to take down the Ten Commandments poster.
ARGUMENTS FOR TEMPLE
Temple will offer the counter argument that this is simply a passive display as part of the general theme on meditation and prayer and cannot be seen as an endorsement of religion. And, as part ofa designated forum, its religiously+hemed advertisement is free speech and may not be discriminated on viewpoint grounds because it is a religious advertisement
TOMMYv. HIGH SCHOOL
ARGUMENTS FOR HIGH SCHOOL
Students do not have rights of free speech that are co-extensive with those ofadults in the public and reasonable restriction to insure civility and a non-hostile learning environment are constitutionally valid. Thus disciplinary rules to safeguard any student mocking the religion or race or ethnicity of another are constitutionally valid.
ARGUMENTS FOR TOMMY and CONTRA ARGUMENTS BY HIGH SCHOOL
TOMMY will claim the school disciplinary rule is VOID FOR VAGENUESS OR IS SUBSTANTIALLY OVERBOARD because of terms like "offensive' speech.
VOID FOR VAGUENESS
A rule or law is void for vagueness if it is so unclear that it lacks an ascertainable standard of guilt that ordinary people must have to guess at its central meaning.
HIGH SCHOOL will seek to refute this on the grounds that the term "offensive" must be viewed in the context of high school students and the mission of civility of a school. Part of this civility is to not mock the faiths of other students on campus as this will create an atmosphere of tension that will disrupt the leaming environment. The reference to belief in Jesus is a "lie" will almost surely provoke a heated reaction raising problems of potential arguments and violence on camDus. SI.'BSTANTIAL OVER.BREADTH
A law may be invalidated for facial over-breadth only if the regulation tr@bdg is zubstantially over-broad in relation to its plainly legitimate sweep.
While there may be some debate as to the reach of the word'bffensive" in t€rms of adult speech in public, this is not the case in high schools because the term 'bffensive" must be seen in the context of a leaming environment and concems for civility and tolerance. Tommy's argument for over-breadth is likely to fail. ISSUE SHEET: QUESTION #2 SPRING 2014: (Santa Barbara and Ventra) Dean Stanislaus Pulle
A&C v. US DEPT. OF EDUCATION
A&C Declaratory Relief that federal law requiring 250/o hiring quota violates the Equal Prolection Clause (EPC) of the Fourteenth Amendment.
State Action
State action has been found when govemment conduct is so pervasively entwined with the structural operations of the private entity in such a manner to create a sufficiently close nexus between them and the sate that the decisions ofthe private entity may be fairly attributable to the state, As a preliminary issue, a real question exists whether or not A&C is a governrnent actor. The mere fact that A&C is a licensed school and receives 50% of its budget in the form of federal grants and must annually submit audited financial reports ofhow these monies are spent does not necessarily make it a state actor. However, the role of a government monitor involved in the operational phases of A&C reviewing applicants files for admission may indicate that who is or is not admitted a form of pervasively entanglement that is fairly traceable to govemment- US Dept. of Education because they appear to hold the purse strings ofthe school.
Eoual Protection Applies to Federal Law
Couns have held the "due process" clause of the Fifth Amendment contains an "equal protection" component or parallel to that found in the Fourteenth Amendment and have applied the same three tier test of scrutiny that is applied to the states.
This three tier test is as follows applies to the type ofclassification on hand.
l. Rational Basis Test: With respect to classifications in the general socio-economic sphere, regulations that have "a" reasonable basis to a legitimate govemment purpose are valid and a presumption of constitutionality attaches to such legislation.
2. Intermediate Scrutiny: Classification dealing with gender and illegitimacy are subject to an intermediate level of scrutiny whereby such govemment regulations must serve an important govemmental interest and the means used must be substantially related toward achieving such purposes.
3. Strict Scrutiny deals with classifications based on race, nationality, ethnicity and religion and government regulations must address compelling reasons to justify such classifications and the means used must be nanowly tailored to achieve this objective. Affrrmative action classifications are subject to strict scrutiny where rigid quotas are unacceptable as applied to colleges and universities.
Diversity As A Compelline Basis
Court have found diversity of student population to be a compelling reason for aflirmative action program in colleges and universities since it helps cross-racial understanding and breaks down racial stereotvDes.
Narrowlv Tailored
However, these programs must be narrowly tailored where a holistic and individualized view of each applicant's record is taken into consideration to award reasonable "plus" points based on race.
Fixed Ouotas
If race alone is a decisive factor in the admission of undenepresented minorities the such a selection index is not narrowly tailored. Therefore, the 25Yo fixed quota system in this case fails the strict scrutiny test.
JANE v. A&C
Jane's Constitutional Claim of Free Soeech As A Govemment Employee
While public employees have a constitutionally protected interest in freedom of expression, the courts have required that a balance be struck between the interests of the employee, as a citizen, in commenting upon matters of legitimate public concem and the interests of the state, as an employer, in promoting the efficiency of the public services it performs through its employees. (The "Pickeringi' balance)
Jane's Constitutional Claim of Violation of Procedural Due Process
Under the due process clause of the 14th no state shall deprive any person of life, liberty, or property with due process.
Liberty interests include the right of free speech. Under the "Pickering" balance, Jane will claim that this did not involve a personal grievance of hers. Nor was her letter to the U.S. Attomey General's office an attempt to get even with the monitor or the Board members. But rather involved a genuine conflict ofinterest issue involved in the running of"state" college.
Propertv interests are not defined in the U.S. constitution but may be found in state law, common law, or in state constitutions. Courts have found a property interest among employees who have a legitimate expectation to continued employment. Being the long term Director of A&C, Jane with five years of service had property interest in continued tenure protected by procedural due process. Process Due
The process due is govemed by weighing the three-part Matthews v. Eldridge formulation.
I . The nature of the private risk affected by the official action. This risk of deprivation involves Jane's job as a director of a college and therefore she was entitled to some form of individual hearing.
2. The risk of an erroneous deprivation of such rights based on the procedures used. Jane was summarily discharged with only a statement of reason and was not allowed either to assert her rights of free speech or property in bringing to the attention ofthe US Attomey General a serious conflict of interests between a school's goveming board members and the government monitor.
3. The govemment interest in the fiscal and administrative burdens resulting from the need for substantive procedures. Here, it would not be administratively or fiscally burdensome to allow for use of a faculty grievance procedures that are in place for many college staff.
42 USC $1983
The deprivation ofa civil right "under color of'state law allows for reinstatement and damage remedies including attomey fees. A&C is a governmental actor and violation
of due process will allow for a $ 1983 lawsuit.
JESSICA v. A&C (Violation of Symbolic Free Speech)
Courts have used a four-part test to evaluate the constitutionality of symbolic speech on public streets.
I . Is the regulation within the constitutional power of govemment? Unlike high school students, college students are allowed more latitude in expressive activity. But colleges are allowed to have reasonable viewpoint neutral speech restrictions.
2. Does the law further an important substantial interest? Colleges are allowed to have regulations against vandalism and defacing ofschool property through graffiti etc. This is a substantial interest against devaluing campus facilities.
3. Is the govemment interest uffelated to the suppression of free speech? Like the draft card case (US v. O'Brien), the law here is aimed at insuring the campus buildings being used as grafhti-billboards. The crucial question here whether other graffiti violators have been punished likewise with dismissal.
4. Is any incidental restriction on free speech freedoms no greater than what is essential to the furtherance of that interest? The viewpoint neutral regulations prohibiting the defacing ofschool property unrelated to the suppression of free speech is a reasonable fit.