An Introduction to Civil Rights and Civil Liberties Law and History”

“An Introduction to Civil Rights and Civil Liberties Law and History”

Curriculum Developed by Julia Rose Kraut, JD, Ph.D. Judith S. Kaye Teaching Fellow Historical Society of the New York Courts

*Curriculum for Middle School Students

This curriculum has been adapted from the “Civil Rights, Civil Liberties, and the Empire State” curriculum for high school students at Bard High School Early College, and based on a semester- long course for 8th grade students at George Jackson Academy during the 2016-2017 academic year, co-taught with Instructor David Hong. The purpose of this curriculum is to provide teachers with ways to bring more material addressing legal history and law into middle school classrooms. While this curriculum may be taught as a semester or year-long course for middle school students, instructors may want to incorporate portions into existing courses or lessons. The curriculum could be incorporated in whole or in part into a civics or social studies course, or a social justice course or a course focusing on American history. Instructors should feel free to modify and tailor the curriculum’s units and any suggested assignments to best serve their specific students and to fulfill curricular requirements. The curriculum was designed for 8th grade students who have taken or are taking an American history course, but instructors may wish to adjust and adapt the curriculum or specific units in order to teach it to 7th or 6th grade students.

Curriculum Description

This curriculum focuses on teaching middle school students civil rights and liberties law and history in the United States, and specifically in New York. Through debates, activities, and role- play, as well as reading and writing assignments, students will hone their critical thinking and analytical skills while learning about the judicial system. They will learn about their rights as students and citizens, and the historical underpinnings that have changed the judicial system and expanded these rights. Students will gain a greater understanding of how law and the courts have helped to shape history and pave the way for the nation’s current freedoms, protections, and challenges. They will explore past struggles for freedom, equality, and protection through activism, legislation, and litigation, while connecting these struggles and triumphs to the present.

This curriculum also focuses on sparking students’ interest in the law and potential careers in the law, while providing students with more information about how the legal system and the courts shape their everyday lives as New Yorkers. Students will not only learn more about their civil rights and civil liberties by studying legal history, but also by studying legal precedent and learning how to interpret law and to apply this legal precedent to new cases and fact patterns.

1 History, Legal Foundations, and Court Structure

I. Colonial/Revolutionary New York and Founding Documents

-Colonial America – Colonial New York -Crown v. John Peter Zenger (1735) – Libel - Freedom of the Press -Revolutionary New York -Declaration of Independence -United States Constitution -Bill of Rights

Suggested Resources: HSNYC resources include New York Under Dutch Rule, New York Under English Rule, Revolutionary New York, and the John Peter Zenger case, and additional resources and lesson plans. Founding Documents – at the National Archives and Library of Congress.

Suggested Class Activities or Assignments: (1) Provide each student with a Pocket Constitution to use in class and to keep; (2) Class debates – to stay or separate from England, to ratify the Constitution, to have a stronger or weaker federal government, etc.; (3) Design an Experiment in Democracy – have students design a new government and write their own Constitution for the colonists after they declared their independence from England; (4) Bill of Rights exercise – have students read the Declaration’s list of grievances and then find which grievances have been incorporated into the Constitution and into the Amendments in the Bill of Rights; and (5) Watch Film – screen short videos from Annenberg Classroom on the Constitution and the Bill of Rights.

II. New York Constitution and New York Courts & Federal Judiciary and US Supreme Court

-Federal Courts - Appellate Process: from District Court to the US Supreme Court -New York Constitutions - Historical and Current -New York Penal Code – Criminal laws -New York Human Rights Law – civil rights and liberties protections (*state laws can provide more civil rights and liberties protections for residents than federal law) -New York Courts – Appellate Process: from NY Supreme Court to the NY Court of Appeals -Civil and Criminal Cases – distinction between them – lawsuits vs. prosecution

Suggested Resources: HSNYC resources include information on New York Constitutions and New York Courts. Additional resources describe the Federal Courts, NY Penal Code, NY Human Rights Law, New York City Courts – Civil and Criminal, and a Legal Terms Glossary.

Suggested Class Activities or Assignments: (1) Role-play – create a homework or in-class activity where students walk through the different stages of a civil lawsuit or criminal prosecution – could be a short activity or a longer activity such as a mock trial; (2) Field Trip to a New York Courthouse and Meet a Judge – contact the New York Courts to arrange this visit; and (3) Field Trip to the Manhattan District Attorney’s Office – contact the DA’s Office to arrange it.

2 III. A Nation of Immigrants – Newcomers to the Empire State

-19th century immigration to the United States and New York -Nativism & Restrictions on immigration – state controlled until late 19th century – in Henderson v. Mayor of the City of NY (1875), Supreme Court held Congress controls immigration, not the states -Irish immigration and Know-Nothing Party -Chinese Exclusion in 1882 – constitutionality of exclusion upheld in Chae Chan Ping v. US (1889) and extended to deportation in Fong Yue Ting v. US (1893) - under “plenary power” doctrine Congress controls US borders – as part of its right as a sovereign nation and part of its right to self-preservation -Immigration Act of 1891, opening of Ellis Island in 1892 and of Angel Island in 1910 -20th century immigration to the US and New York – including Southern and Eastern Europeans -Nativism & Restrictions on immigration – discriminatory quotas - National Origins Act of 1924 -Mexican Repatriation and Bracero Program -Japanese Internment – Executive Order 9066 – Korematsu v. US (1944) -Immigration Reform – Hart-Celler Act of 1965, Immigration Reform and Control Act of 1986 -Undocumented: Dreamers and DACA

Suggested Resources: #ImmigrationSyllabus has an extensive list of primary and secondary sources, there are lesson plans at Library of Congress, PBS, Gilder Lehrman, National Archives, and Scholastic, and the Supreme Court cases can be located at Justia US Supreme Court Center.

Suggested Class Activities or Assignments: in addition to lesson plans included in the suggested resources – (1) Students describe their own or their family’s immigration or migration history – including oral interviews, photos, research, etc.; (2) Students describe the immigrants in their neighborhood, borough, town, city, etc. – including oral interviews, photos, research, etc.; (3) Field Trip to Ellis Island Museum; (4) Field Trip to Tenement Museum – also with lesson plans.

IV. Slavery, Abolitionism, and Reconstruction

-Slavery in South and North - including Slavery in New York -Northern states begin to abolish slavery - including New York in 1827 -Abolitionist movement – (William Lloyd Garrison, Frederick Douglass, Sarah and Angelina Grimké, Sojourner Truth, Horace Greeley, David Walker, Theodore Weld, Lucretia Mott, etc.) -Federal law – Fugitive Slave clause in Constitution, Article IV, Fugitive Slave Act of 1793, Missouri Compromise of 1820, Compromise of 1850, Kansas-Nebraska Act of 1854, etc. -State law – Personal Liberty laws – New York Constitution, Liberty law, Underground Railroad -Dred Scott v. Sandford (1857) (Supreme Court - African Americans are not citizens - Dred Scott not free even if voluntarily taken to free state) -Lemmon v. People of NY (1860) (New York Court of Appeals - slaves are free if voluntarily taken to free state like New York - opposite of Dred Scott) -New York Draft Riots of 1863 -Reconstruction Amendments: 13th - abolishes slavery - exception for those convicted of a crime; 14th - all those born in US are US citizens (response to Dred Scott), states cannot deprive

3 individuals of life, liberty, and property without due process, and equal protection under the law; 15th - voting - no discrimination based on race or color. *Gender not included in amendment -Reconstruction - Freedmen's Bureau, Civil Rights and Reconstruction Acts of 1866, 1870, and 1875 -Black Codes and KKK – response to end of slavery, Reconstruction, legal and political equality -Segregation and Discrimination – Setting the Stage for Civil Rights Movement in 20th Century -Civil Rights Cases (1883) – Supreme Court held that Civil Rights Act of 1875 banning discrimination in public accommodations is unconstitutional under the 14th amendment because amendment applies to state action, not private action – inns, theaters, restaurants are private action. -Plessy v. Ferguson (1896) – “separate but equal” is constitutional under the 14th Amendment.

Suggested Resources: HSNYC resources include New York before, during, and after the Civil War, and the Lemmon case with lesson plan. Additional resources are at PBS, the Abolition Seminar, Gilder Lehrman on anti-slavery and Reconstruction, and Street Law and the Supreme Court Historical Society - landmark cases on Dred Scott v. Sandford and Plessy v. Ferguson.

Suggested Class Activities or Assignments: Please consult lesson plans in suggested resources.

V. Civil Rights Movement – North and South

- North/South - de facto vs. de jure segregation. North – employment, housing discrimination South - segregation in public accommodations, transportation, and exclusion from voting -New York discrimination in housing, employment – NY Human Rights Law and Commission -Civil Rights Activists: W.E.B. Du Bois, Marcus Garvey, A. Philip Randolph, Ida B. Wells, John Lewis, Martin Luther King, Jr., Rosa Parks, Medgar Evers, Bayard Rustin, Ella Baker, Diane Nash, Fannie Lou Hamer, Stokely Carmichael, Malcolm X, Huey Newton, Bobby Seale, etc. -Civil Rights Strategies - civil disobedience, marches, boycotts, sit-ins, freedom rides, voting registration, constitutional challenges, Black Panther Party (use of open carry laws), legislation, etc. -Civil Rights Legislation: Civil Rights Act of 1964 - bars discrimination in public accommodations, employment, and education; Voting Rights Act of 1965 – bars racial discrimination in voting; and Fair Housing Act of 1968 - bars discrimination in housing -Brown v. Board of Education (1954) – integration of schools. NAACP and Thurgood Marshall -Katzenbach v. McClung (1964) – upheld constitutionality of public accommodations provision of the Civil Rights Act of 1964 under the commerce clause in Article I of the Constitution -Loving v. Virginia (1967) – struck down anti-miscegenation statute under the 14th Amendment

Suggested Resources: Some additional resources to supplement those already used by instructors include PBS, Gilder Lehrman, Street Law Brown v. Board lesson plan, Freedom Riders film and resources, oral arguments and decision in Loving v. Virginia, Freedom Summer film and resources, text of Civil Rights Act and Voting Rights Act, and Black Panthers film.

Suggested Class Activities or Assignments: Please consult lesson plans in suggested resources. Also, one may want to design an in-class or homework exercise exploring the Supreme Court’s overturning Plessy v. Ferguson in Brown v. Board of Education, and comparing the Supreme Court’s reasoning and its decision in the Civil Rights Cases and in Katzenbach v. McClung.

4 VI. Women’s Rights Movement – Gender Equality and Right to Privacy

-19th century suffrage movement and “woman question” split in the abolitionist movement -Seneca Falls Convention in 1848 and the “Declaration of Sentiments” -Suffrage Movement split over the 15th Amendment -Challenges to exclusion from voting: US v. Susan B. Anthony (1873), Minor v. Happersett (1875) -20th century suffrage movement - 19th Amendment - right to vote, no discrimination based on sex -Alice Paul and the Equal Rights Amendment -Margaret Sanger and Planned Parenthood – fight for access to health information and contraception -Second Wave Feminism - Equal Pay Act of 1963, Civil Rights Act of 1964 (no discrimination in employment based on sex) and EEOC, Title IX amendment in 1972 (no discrimination in education) -Ruth Bader Ginsburg and sex discrimination cases Reed v. Reed (1971) and Craig v. Boren (1976) -Right to Privacy – Reproductive Rights – “right to privacy” within penumbra of Bill of Rights in Griswold v. Connecticut (1965) (contraception) and substantive due process – “right to privacy” in liberty in the due process clause of the 14th Amendment – Roe v. Wade (1973) (abortion) -Feminists: Susan B. Anthony, Lucretia Mott, Sojourner Truth, Elizabeth Cady Stanton, Abby Kelley Foster, Carrie Chapman Catt, Alice Paul, Pauli Murray, Betty Friedan, Gloria Steinem, Shirley Chisholm, Dorothy Kenyon, Judith S. Kaye, Ruth Bader Ginsburg, Sandra Day O’Connor, etc.

Suggested Resources: HSNYC resources include an article on Judith S. Kaye and an article on reproductive rights and the People v. Margaret Sanger. Some additional resources to supplement those already used by instructors include a Timeline of Legal History of Women, Gilder Lehrman on suffrage, on Seneca Falls, on US v. Susan B. Anthony, on Alice Paul, and on Griswold v. Connecticut.

Suggested Class Activities or Assignments: Please consult lesson plans in suggested resources. Also, one may want to design an in-class or homework exercise exploring the connections between the Civil Rights Movement and the Women’s Rights Movement, the historical figures and lawyers who participated in both movements, and the interpretation of the 14th Amendment in reproductive rights, as well as in sex and race discrimination suits and constitutional challenges.

** Labor - one may want to develop a separate unit to address this subject or could incorporate it into existing units on Immigration or Progressivism. Two cases may prove helpful: Lochner v. NY (1905) striking down protective legislation restricting work hours and articulating the freedom of contract - substantive due process (in liberty in the due process clause of the 14th Amendment) and Muller v. Oregon (1908) upholding protective legislation restricting work hours for women. One may also want to include lessons on the Triangle Shirtwaist Factory fire and its aftermath.

**LGBTQ Rights Movement– one may want to develop a separate unit to address this subject or could incorporate it into existing units on the Civil Rights Movement and the Women’s Rights Movement. Outhistory.org has a number of resources on LGBTQ history and law to use in the classroom and in lesson planning. Lambda Legal also provides information on cases and statutes. Discussion of three cases addressing marriage or privacy might prove helpful – especially when taught in conjunction with Loving v. Virginia and Roe v. Wade: Chief Judge Judith S. Kaye’s dissent in Hernandez v. Robles (2006), Lawrence v. Texas (2003), and Obergefell v. Hodges (2015).

5 Bill of Rights in Action: Civil Liberties Cases and Interpreting Legal Precedent

Introduction to Legal Precedent and Interpretation

-Judicial Review – Marbury v. Madison (1803) (role of courts to say what law is – interpret the law – decide if statute, treaty, or regulation is constitutional)

-Legal Precedent – in a common law legal system, a case that establishes a legal rule or standard that will be applied to subsequent similar cases. Judges will look to these previous cases and the legal precedent they have set when they have to decide new cases. They will apply these legal rules to the facts of this new case to help them decide and reach an outcome. When applying legal precedent, judges will have to interpret the precedent when applying it to the new case and will compare the facts in the previous case that set the precedent to the facts in this new case they are deciding.

* The following three units should provide students with the opportunity to practice applying the law to facts, like judges and lawyers. Students will learn about civil liberties legal precedents under the Bill of Rights and will have the chance to apply these precedents to hypothetical fact patterns.

I. First Amendment – Speech, Assembly, and Press

(1) Speech in Schools (First Amendment requires state action - does not apply to private schools)

Tinker v. Des Moines (1969) – public schools cannot prohibit free expression unless it “materially and substantially interferes with the requirements of appropriate discipline in the operation of the school.”

(2) Speech outside of Schools

Brandenburg v. Ohio (1969) – Congress or States cannot prohibit free expression of controversial, inflammatory speech or the mere advocacy of violence, unless this expression is “directed to inciting or producing imminent lawless action that is likely to incite or produce such action.”

(3) Symbolic Speech

Texas v. Johnson (1989) – burning an American flag can be a form of symbolic speech and is protected by the First Amendment.

US v. O’Brien (1968) – Congress or States can restrict symbolic speech if the regulation “furthers an important or substantial governmental interest,” which is narrowly tailored to serve that interest, and if the restriction is content-neutral and unrelated to the suppression of the expression.

(4) Marches and Demonstrations

Ward v. Rock Against Racism (1989) – Congress or States can restrict the “time, place, and manner” of free expression in public places, but such restrictions must be content and viewpoint-neutral (can restrict volume of concert in public park; can't prevent KKK marching based on content of speech).

6 (5) Freedom of Press and Defamation

New York Times Co. v. US (1971) – prior restraints violate freedom of press under the First Amendment, and Congress or States must meet a “heavy burden” to justify such a restraint – declaring a threat to national security without demonstrating an actual threat is insufficient.

New York Times Co. v. Sullivan (1964) – defamation (including libel) is not protected by the First Amendment. To prove libel of a public figure, the press must have published with “actual malice,” knowing the statements were false or in reckless disregard to their truth or falsity.

Suggested Resources: Lesson plans include those for Tinker v Des Moines, Brandenburg v. Ohio, Texas v. Johnson, New York Times Co. v. Sullivan, and a short film on New York Times Co. v. US.

Suggested Class Activities or Assignments: Please consult the lessons plans in suggested resources. Also, for an in-class or homework assignment, create hypothetical scenarios based on the facts of these cases, have students discuss what they think about each scenario and its constitutionality, then present the case and legal precedent, and have students apply the precedent to the hypothetical scenario and return to their discussion of its constitutionality.

II. Search and Seizure: Fourth Amendment Protections

(1) Search/Seizure in Schools (Fourth Amendment requires state action - does not apply to private schools)

New Jersey v. T.L.O. (1985) – the Fourth Amendment applies to public schools, but not the probable cause standard that applies to the prohibition on unreasonable searches and seizures. Instead, public school officials may conduct reasonable warrantless searches of students.

(2) Search/Seizure outside of Schools

Katz v. US (1967) – the Fourth Amendment protections apply to all areas where a person has a “reasonable expectation of privacy.”

Mapp v. Ohio (1961) – exclusionary rule. All evidence obtained in violation of Fourth Amendment protections are inadmissible in a state criminal proceeding, as well as in a federal court proceeding.

Terry v. Ohio (1968) – stop-and-frisk. Fourth Amendment protections against unreasonable searches and seizures are not violated when a police officer stops and frisks someone without probable cause, if the officer has a “reasonable suspicion” that this person has, is, or is about to commit a crime or has a reasonable belief that the person might be armed and pose a threat to the officer’s safety. “Reasonable suspicion” is based on “specific and articulable facts” and not merely a hunch and the frisk is limited to detecting weapons.

** In New York, the police department has altered is policy and implementation of stop-and- frisk, in light of a district court ruling in Floyd v. City of New York (2013), which found that the stop-and-frisk practices were racially discriminatory and unconstitutional, and in light of appeals.

7 Suggested Resources: Lesson plans include those for New Jersey v. T.L.O., Katz v. US, and Mapp v. Ohio, as well as a short film on Mapp and the Fourth Amendment.

III. Right to an Attorney and Right to Remain Silent - 5th and 6th Amendment Protections

(1) Right to an Attorney

Gideon v. Wainwright (1963) – Sixth Amendment right to counsel extends to criminal defendants in state courts. Indigent criminal defendants must be provided counsel at trial.

(2) Right to Remain Silent and Know your Rights

Miranda v. Arizona (1966) – a person retains Fifth Amendment protection against self- incrimination. If a person is placed in custody, that person must be informed of his or her constitutional protections, including against self-incrimination under the Fifth Amendment and right to counsel under the Sixth Amendment. Once informed, this person may freely choose to waive his or her rights. Creates what is referred to as the “Miranda warnings”: “You have the right to remain silent. Anything you say or do can be used against you in a court of law. You have the right to an attorney. If you can't afford an attorney, one will be provided for you.”

Suggested Resources: Lesson plans include those for Gideon v. Wainwright and Miranda v. Arizona, and short films for both Gideon and Miranda. The Manhattan District Attorney’s Office also has an educational resource tracing the procedure from arrest to sentencing.