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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.

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