Affirmitive Action

Regents of the University of California v. Bakke were decided on June 28th, 1978. This case questioned the validity of affirmative action. Allan Bakke questioned whether the special admissions program for The Medical School of the University of California at Davis was in violation of the Equal Protection Clause of the Fourteenth Amendment. This clause states, “no persons in the United States shall, on the ground of race color, or national group, be excluded from participation in, be denied the benefits of or be subjected to discrimination under any program or activity receiving Federal financial assistance.”
The Medical school of the University of California opened in 1968. There were fifty students in the first class, and by 1971 the class size increased to one hundred. Out of the original fifty students only three were Asian, and there were no African-Americans, Hispanics, or Native American Indians. At this time there was no admissions program to assist disadvantaged students. So, the faculty created a separate program for “disadvantage” applicants. A series questions were asked to ascertain which application program the applicant would be put into. Those question being, whether the applicant wanted to be classified as economically, or educationally disadvantaged, and if they wanted to be classified as a minority. Ethnicities classified as minority included, “blacks,” “Chicanos,” “Asians,” and “American Indians.” The Chairman of the Special Admissions program would review each applicant to assess level of disadvantage, and then a special committee would review the application, like the regular application process. A major difference in the special admission program, and regular program, is the minimal grade point average to be cut off. The regular candidates had a minimal grade point average of a 2.5, while the special program did not. The ratio of regular applicants invited to interview was one of six, while the special applicants was one of five. The special applicants were not compared to the regular applicants either. Out of fifty spots, eight of the acceptances needed to be from the special admissions program, and when the size of the class double the number of special applicant acceptances double as well. In 1974 the special admissions programs brought twenty-one black, thirty Mexican-American, and twelve Asian. The regular admissions program accepted minority applicants as well. At this time the term disadvantaged referred to minority applicants.
The petitioner, Allan Bakke, is a white male who applied to Davis Medical School in 1973 and 1974. He was considered for regular admissions both years, and received an interview both years as well. After his first rejection he wrote to Dr. George H. Lowry, Associate Dean and Chairman of the Admissions Committee to express dissent with the special admissions program based on race. Bakke was rejected after his second application as well. Both years Bakke applied, applicants were accepted with lower GPA, MCAT, and benchmark scores than Bakke and other rejected applicants. After the second rejection Bakke filed suit with the Superior Court of California, seeking mandatory consolation involving his admission status to the medical school. Bakke argued that his rejection through the general admissions program was based on his race, which is in violation of the 14th Amendment, the Equal Protection Clause. In the Superior Court of California Justice Holmes felt the idea of discrimination, along with “equal protection under the law,” varies according to the time. This court ruled in favor of the medical school, “Title IV must be held to proscribe only those racial classifications that would violate the Equal Protection Clause or the Fifth Amendment.” The special admissions program was based on race and ethnic origin, and in an attempt to create a more diverse environment; conducive for an enriching environment others were put at a disadvantage. White applicants had to compete for eighty-four seats, while the full one hundred positions were open for minority applicants. Because of the lower standards minority applicants had to meet, and the greater number of seats to fill in the accepted application, it creates a feeling of resentment form those apart of the majority. A patronizing notion is created as well, because the special admissions programs implies that many of those apart of the minority cannot gain admission, without lower standards. It is also held that a state must justify subject classification, and prove he benefit to be constitutional, and protect its interest. However, the court also recognizes the schools academic freedom, which is not stated, but in implied in the First Amendment. For this reason the United States Supreme Court ruled that the Special Admissions program was unconstitutional. However, there was many concurring, and dissenting point that left this case to be left open ended for future cases. The dubious conclusion of this case effected future cases of a similar nature.
Barbra Grutter v. Lee Bollinger was decided June 23rd, 2003. This case also addressed with the constitutionality of the affirmative action process at University of Michigan Law School. This court’s are once again asking if it is constitutional to use race in considering an applicant. In 1992 an admissions policy to create a more diverse student body was created. However, unlike the Bakke case, race was not the only factor in determining diversity. In the application, questions about experiences, talents, and how the applicant could potentially add diversity to the academic setting were asked. These questions had the intent of being flexible, so each applicant could prove their uniqueness or diversity, using a matter other than race. These personal questions along with, GPA, LSATs, and recommendations were used to deliberate an applicant’s acceptance.
Barbara Grutter is a white female, and Michigan resident. She applied in 1996 possessing a 3.8 GPA, ad 161 LSAT score, and was initially put on the waiting list, and then rejected. In 1997 she filed suit with the United States District Court, against the law school. She, like Bakke, argued that her rejection was based on race and in violation of the Fourteenth Amendment. She also inferred that race is the predominant acceptance factor. Date from the acceptance from 1995 to 2000 was evaluated from a Dr. Lamtz. He concluded that race is an immensely strong factor, in acceptances made in those five years, but not the predominant one. Another doctor, Dr. Raudenbush also researched the effect of having a racially blind application process and inferred that is would have negative effects. It would most likely decrease the thirty-five percent unrepresented minorities accepted by ten percent. Justice Powell agreed with the use of race to create a diverse student body, but was adamant in including the fact that race is only one aspect of diversity. They concluded that admissions programs must use diversity as a plus to an acceptance, and cannot envelop an ethnic group. “…Place them on the same footing for consideration, although not necessarily according them the same weight.” The court ultimately ruled that it is constitutional to include race in applications; however, a time limit was put of twenty-five years. They decided to make it temporary because racial and ethnic groups is a temporary matter, and it is possible that in twenty-five years that race will not be relevant. Affirmative action was not only an issue pertaining to applications, but in the Federal Government contracts as well.
Adarand Constructors Inc. v. Pena was decided June 12th, 1995. The Petitioner, Adarand, argued the Federal Government giving incentives to general contractors on government project to hire subcontractors controlled by, “socially and economically disadvantaged individuals,” was in violation of the Fifth Amendment’s Due Process Clause.
The Central Federal Lands Highway Division endowed the Colorado to Mountain Gravel and Construction Company a major contract. Mountain Gravel then Adarand, and Gonzales Construction Company both submitted bids for the guardrail contracts, which Gonzales Company won. Mountain Gravel received compensation for choosing the “socially and economically disadvantaged,” controlled company. The government argued that this is a program based on disadvantage, not race, so the scrutiny should be less than those issues involving race. The court said although the racial classification come with good intentions, or “benign,” more than beneficial motives must be present to receive resources which use racial classification systems, and ultimately ruled that this program was unconstitutional.

Chaviess

Supreme Court Cases Concerning Presidential Power-Arsalan Ahmad

“Four score and seven years ago…”, “I did not have sex with that young intern…”, “If the president says so, than it’s not illegal!”. These quotes were said by some of the most famous American presidents. The Executive has been shown throughout history has to have a great deal of power. Many Supreme Court cases have shown, however, that there comes a time where the president’s power may become too great and that restrictions must be placed. Furthermore, there are times where the degree of how much power the Executive truly possesses has come into question, and whether or not the President is subject to certain laws that the rest of American citizens are subject to. The following are five prevalent cases ranging over 100 years which have seen the issue of presidential power come into question and scrutiny.

The first of my major examples of these cases begins in 1866, with the case of Ex Parte Milligan. Lambdin P. Milligan, a citizen of the US, who had lived in Indiana for 22 years, was arrested by order of General Hovey, commander of the military district of Indiana, and kept in confinement. Milligan and his men were caught trying to set POWs in a Union Camp free and fight Union forces in the area. The primary concern about this case was whether or not military tribunals (military “commission”) – under which Milligan was subject to – were allowed to try citizens despite the fact civilian courts were in operation.
There were three primary questions the judges faced: should a writ of habeas corpus (suspended during the Civil War) have been issued?, Should Milligan have been released?, and Did the military commission have the jurisdiction to try Milligan?. The third of these questions was the most predominant, as Milligan was not a combatant, a resident of the “rebel” states, or a POW himself, but merely a civilian. There was great debate whether or not the fourth, fifth, and sixth amendments protect Milligan. Clearly his rights were violated when he was tried by a court not ordained and established by Congress and not delivered to the Circuit Court as law dictates. Furthermore, Milligan was denied trial by jury; the main justification was that martial law covered all the proceedings of the military commission, and that the commander of the military group has the jurisdiction in his military district.
The Supreme Court, however, recognized that martial law destroys every guarantee of the Constitution and allows the military to become independent to that of the civil power, and that could not be allowed. The final decision of the Court, however, was that suspension of habeas of corpus was legal, but the military tribunal had no authority over citizens who lived in the areas of the country that “upheld” the Constitution (like Milligan), and could not try citizens if civil courts were active, even if there was a war going on. And for those wondering about the fate of Milligan, his execution was not scheduled until after the war, so he was fortunate in having the chance to argue his case before the war concluded. .
HOLDING: Suspension of habeas corpus is unconstitutional when civilian courts are still operating; the Constitution provided for suspension of habeas corpus only if civilian courts are actually forced closed.

World War II, a difficult period for the United States, saw the action of many spies and agent trying to infiltrate enemy nations and undermine them from the inside. This happened in particular in the case of Ex Parte Quirin in 1942, in which eight German individuals (all except one man named Haupt were citizens of Nazi Germany – Haupt came to America when he was a child, and became a US citizen by virtue of naturalization and had not lost his citizenship), where they boarded a German sub and came to America with explosives and wearing German military uniforms (which they buried upon landing in New York). It was believed that they came on a sabotage mission. The men were later apprehended by the FBI and charged with: violation of the law of war, corresponding/giving intelligence to the enemy, offense of spying, and of conspiring to commit the previous three offenses.

The German men contended that the President was without any authority to order them to be tried by a military tribunal for any offense that they were charged with and were entitled to be tried in civil courts so they could be protected by the rights of having a jury (guaranteed by the 5th and 6th amendments). When it came to the Supreme Court, the main issue was that whether or not citizenship (of the seven out of eight men) protected them from a military tribunal. In the end, the Court felt that citizenship was not enough to exempt the accused petitioners from a tribunal as they were associating wit the military branch of an enemy country in time of war AND engaged in actions against the US.
The decision was as such:

…the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals.

In the end, a secret military tribunal was brought together by FDR, which sentenced the eight men to death. Happy ending. However, it established as the precedent for military commissions dealing with unlawful enemy combatants.

HOLDING: The Court upheld the jurisdiction of a United States military tribunal over the trial of several German saboteurs in the United States.

One of the most important cases relating to the president took place after the Watergate Scandal in 1972, where seven burglars broke into the Watergate Hotel and stole important, confidential documents. In 1974, by order of the special Prosecutor, Richard “Not A Crook!” Nixon released various transcripts that were edited as ordered by the subpoena. A subsequent hearing, motions were made to expunge the grand jury’s action of naming Nixon an unindicted coconspirator, which were denied by the District court. In response, Nixon’s counsel argued that the court lacked jurisdiction to issue the subpoena, due to the matter being an intra-branch dispute between a subordinate and superior officer of the Executive Branch and not subject to judicial resolution and that the federal courts should not intruding into areas committed to other branches of government. The Court, however, said that jusiticiability does not depend on such a “surface inquiry”.
Of course, Nixon tried to protect himself and resist on the ground of his duty to preserve the confidentiality of the communications of the President, and by using his “executive privilege”. Nixon’s counsel contended that the separation of powers doctrine precluded any judicial review of a President’s claim of privilege, and that if he did not prevail on the claim of that privilege, the court should has a matter of constitutional law that the privilege prevails over the subpoena. He also stressed the importance of protection of communications between Government officials and those who advise them. The Court, however,, felt that neither of those reasons could sustain an absolute Presidential of privilege from immunity from the judicial process.
In the end, the Court came to the decision that – in a unanimous decision – that the tapes that Nixon claimed were protected by executive privilege did indeed contain information relevant to the offenses charged in the indictment against Nixon; it would prevent full due process of law and “gravely impair the basic function of the courts”. Concerning the primary matter of the executive privilege, the Court rejected Nixon’s claim to it, and in all circumstances, the matter was subject to judicial review. The Supreme Court’s decision held that the Court had the power established in Marbury v. Madison to rule a law invalid for conflicting with constitutional provisions and the power to decide how the Constitution limits the President's powers.
HOLDING: The Supreme Court does have the final voice in determining constitutional questions; no person, not even the President of the United States, is completely above law; and the president cannot use executive privilege as an excuse to withhold evidence that is 'demonstrably relevant in a criminal trial.
Clinton v. Jones was decided in 1997, when Paula Corbin Jones filed a complaint against President Bill Clinton in 1994 against Clinton and one Danny Ferguson, a former Arkansas cop. In 1991, she lived in Arkansas when Clinton was the governor. She described the events that pushed her to file the complaint; in 1991, during a conference at a hotel in Little Rock, then-Governor Clinton delivered a speech, and Jones was a staff member of the hotel and Ferguson persuaded her to visit Clinton in a business suite where he made “abhorrent” sexual advances she rejected (Lewinski wasn’t the first, apparently). Furthermore, her colleagues at work changed her duties to punish for rejection of Clinton’s advances (supposedly), and after Clinton became president, Ferguson defamed her by making a statement to a reporter where he branded Jones as a liar.

Jones’ complaint included damages (totaling to $175,000) and contained four counts: first, that Clinton deprived her of right; second, that Clinton and Ferguson engaged in a conspiracy to violate her federal rights; third, that there was an intentional infliction of emotional distress; and fourth, for defamation (concerning the comments made by Ferguson to the press). It was established that whatever misconduct Clinton have done was unrelated to official duties as President as they occurred before his election. The suit, was filed in the U.S. District Court for the Eastern District of Arkansas, where it was ruled that a sitting President could not be sued and deferred the case until the conclusion of his term – at Clinton’s insisence. Beforehand, they denied the motion to dismiss th case on grounds of presidential immunity. However, they allowed that discovery of the case to proceed so the trial could begin as soon as Clinton left office.
Both Clinton and Jones appealed to the Court of Appeals. The judge, writing for the majority, said that the “Preisdent, like all other gocernment officials, is sbject ot the same laws that apply to all other members of other society”. They subsequently ruled in favor of Jones. Clinton asserted that the president, “in all but the most exceptional” cases, was afforded immunity (temprarily) by the Constitutionn. It did not stand however. Clinton then appealed to the U.S. Supreme Court, filing a petition for writ of certiorari. Fitzgerald vs. Nixon was brought up many times as a precedent, trying to support the idea that Clinton was allowed full immunity for his acts. Clinton also contended that this wass an infringement on the Executive Branch by the Judiciary, whereas the Court maintained that seperation ofpowers would not be violated.Both sides attempted to persuade Congress with history, recalling Jefferson and Adams, and even James Wilson, but Congress rejected immunity, as the President is subject to discipline by impeachment, not by private lawsuits for damages, but is otherwise subject to the laws for his purely private acts.
The Court maintained two propositions: first, that when the President takes official action, the Court has the authority to determine whether he has acted within the law, and second, that the President is subject to judicial process in appropriate circumstances. It was then “settled law that the separation of powers doctrine does not bar every exercise of jurisdiction over the President”. The Court made its conclusion with a unanimous decision: Justice Stevens, in the majority opinion, ruled that seperation of powers does not mandate that federal courts delay private civil lawsuits against the presidnt until the end of his term; Justice Breyer argued that presidential immunity would apply only if the President could show that private civil lawsuit would interfere with his duties in a concurring opinion.
HOLDING: The Constitution does not protect the President from civil litigation involving actions committed before he entered office.

After the September 11th attacks, America was forever changed. President Bush’s administration pushed for two conflicts in order to hunt down the terrorist enemies responsible for the attacks. While the wars raged on, there was an intensified sense of paranoia and drive to subdue any enemy combatants that were operating within America itself. The PATRIOT Act, for example, was legislation that supported what was essentially the suspension of civil rights in order to apprehend suspected enemies. In 2004, the issue of how to treat a US citizen who was in enemy territory (and possibly taking up arms against America) after he was captured by American troops.
Yaser Esam Hamdi was an American citizen, born in Louisiana, but moved to Saudi Arabia as a child. He resided in Afghanistan by 2001, and was seized by the Northern Alliance, and handed over to American troops, and was transferred to Gitmo Prison, and later a brig in S. Carolina. The government considered him an “enemy combatant”, and that status justified holding him indefinitely. The case was sent to the District Court, which denied the government's motion to dismiss Hamdi's petition. It was because the evidence supporting Hamdi’s detention was based too much on hearsay, and it wouldn’t able to be submitted for judicial review.
The central issue for the Supreme Court (when the case was brought to them) was whether or not the Executive had the authority to detain a citizen who qualified as an enemy combatant. The “Authorization for Use of Military Force” (AUMF) authority allowed the President to use “All necessary and appropriate force” to defend the nation from those involved with the 9/11 attacks, but whether or not it could be used against a citizen of the US was the question. The Supreme Court, granted review and reversed the Circuit Court’s ruling of denying the Hamdi Petition.
In summary, the Court came to the conclusion that the Executive didn’t have the power to indefinitely detain a U.S. citizen without basic due process of law. Several opinions should be noted: Justice David Souter, joined by Justice Ruth Bader Ginsburg, concurred with the plurality's judgment that due process protections must be available for Hamdi to challenge his imprisonment.The two justices dissented from the plurality's ruling that AUMF allowed for Congressional authorization for the detention of unlawful combatants. Doctor Berry’s favorite Justice, Scalia, dissented, being joined with Justice Stevens, saying that the Exective should be restriced from the power of detention. joined by Justice Stevens, went the furthest in restricting the Executive power of detention. Finally, Justice Thomas sided with the government (the only one to do so) and said that the ruling of the Circuit court was necessary in light of security interests.

HOLDING: U.S. citizens designated as enemy combatants by the Executive Branch have a right to challenge their detainment under the Due Process Clause. Fourth Circuit Court of Appeals vacated and remanded.

Indeed, the President has a great deal of power. But these cases have shown that the Supreme Court has the power and has kept the Executive in line. Is the president truly above the law, or just a simple citizen like the rest of us good plebeians? It is a complex issue, but in the end, it is clear that despite any and every power the Executive has, s/he is a servant of the people, and of the Constitution of the United States, and therefore, is subject to both of them.

(MANY THANKS TO RACHEL ST FOR POSTING THIS! – Arsalan)

Gay Rights and the Right to Privacy: 1st and 14th Amendments

The “right to privacy,” although never stated in the Constitution is implied through different amendments. The 14th Amendment is usually most consistently cited; it states: “No state…shall deprive any person of life liberty or property without due process of the law.” The issue that most commonly appears in privacy-related Supreme Court cases, is whether or not personal privacy can inflict upon surrounding society? In a search for a true definition of the right to privacy, the Supreme Court has battled with this question and issue in several cases. The first two cases at hand regarding the right to privacy involves issues surrounding gay rights in America.

In Bowers, Attorney General of Georgia v. Hardwick et al. (1986), the Supreme Court decided that the 14th Amendment did not extend a right to privacy to private, sexual conduct between homosexuals. In August 1982, Hardwick (respondent) was charged with violating the Georgia statute, which criminalizes sodomy between two people of the same sex. The District Attorney, Bowers, after a preliminary hearing, refused to present the case to the grand jury unless more evidence progressed. Hardwick then sued Bowers on account of the Georgia statute being invalid. The case was then presented to the District Case, where it was dismissed. Hardwick then appealed the case to the Court of Appeals, where the Georgia statute was indeed found to be an infringement of Hardwick’s Constitutional rights. The state of Georgia then appealed the decision and the case was sent to the United States Supreme Court.

The case’s critical issue was “whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidate the laws of many States that still make such conduct illegal.” Hardwick felt that the decision of homosexual sodomy should be a different case when occurs in the privacy of a home. He also felt that there was no reasonable rational for the Georgia statute and felt that it was a belief among the Georgia electorate that homosexual sodomy was unacceptable and immoral. The Supreme Court stated that “the law, however, is constantly based on notions of morality.” On June 30, 2000, the Supreme Court decided that the state sodomy laws should not be invalidated.

The next Supreme Court case regarding gay rights and the right to privacy is Boy Scouts of America and Monmouth Council, et al. v. James Dale (2000). James Dale (respondent) was an active Boy Scout from age 8 up until age 18, where he graduated and was granted with the highest ranking of Eagle Scouts. He then applied to be an assistant scoutmaster, was accepted, and was also granted an adult membership. Upon attending college, Dale acknowledged to himself and others that he was gay. He quickly became actively involved with the Rutgers University Lesbian/Gay Alliance. In 1990, while attending a seminar, he was interviewed by a newspaper; this article, as well as a picture of Dale, was soon after published, which stated that he was co-president of the Lesbian/Gay Alliance. Later that month, Dale received a letter from the Boy Scouts of America (BSA) which revoked his membership. The first letter contained no explanation, so Dale requested one and the response stated “that the Boy Scouts ‘specifically forbid membership to homosexuals.’” Two years later, Dale filed a complaint in the New Jersey Superior Court that stated that the BSA had violated New Jersey’s public accommodations statute, which “prohibits, among other things, discrimination on the basis of sexual orientation in place of public accommodation.”

The New Jersey Superior Court’s Chancery Division upheld that the NJ law was inapplicable to the BSA because it was not a place of public accommodation. The New Jersey Superior Court’s Appellate Division upheld that the BSA did indeed violate the NJ law. The New Jersey Supreme Court then agreed with the decision of the Appellate Division saying that the BSA violated the NJ law by revoking Dale’s membership on account of his homosexuality. The BSA felt that the NJ law violated their 1st Amendment right of expression. The BSA then appealed the decision the United States Supreme Court. The Supreme Court had to first decide key questions before making their final decision: the BSA engages in expressive activity, Dale’s activity in BSA would affect their ability to express their opinion, Dale’s presence would interfere with the BSA’s viewpoints, and that the NJ law violates the BSA’s right to freedom of expression.

The two court cases, Bowers v. Hardwick and Boy Scouts v. Dale, created a precedent for gay rights in America, which is a constantly debated topic in America. With the above decisions, the Supreme Court decided that homosexuals were not granted a right to privacy and their actions could potentially affect surrounding society.

The following cases deal solely with the right to privacy and the 1st and 14th Amendments. Myer v. State of Nebraska (1923) was one of the earliest cases regarding the right to privacy. On May 25, 1920 an instructor at Zion Parochial School in Hamilton county, Nebraska was charged with illegally teaching ten year old Raymond Parpart how to read German. The instructor, in doing so, had violated a 1919 law which stated that it was illegal to teach any other language than English to anyone who had not passed eighth grade. Modern languages were specifically targeted and classical languages were exempt; this law was probably in response to the recently ended World War I. The rationale for the law was to create a more united people with a common language, rather than a large percentage of immigrants with foreign languages.

The Nebraska Supreme Court upheld the conviction and stated that the NB statute did not conflict with the 14th Amendment. The case was then appealed to the United States Supreme Court regarding a question of the 14th Amendment. The Supreme Court overturned the before decisions and ruled that the NB law had overstepped the state’s right to regulate. The Court also stated that learning how to read German would be to a child’s benefit and in extremely rare cases would it create a national security threat.

The 14th Amendment and the rights granted were again debated in the 1969 decision of Stanley v. Georgia. Investigators were granted a search warrant for apparent evidence of bookmaking activity in Mr. Stanley’s home, but while searching, found three reels of film. After watching the film, the investigators concluded that they were porn and labeled them “obscene.” Stanley was then “indicted for ‘knowingly hav[ing] possession of…obscene matter’ in violation of Georgia law.” The Georgia Supreme Court upheld the decision of the indictment.

The case was appealed to the United States Supreme Court under the constitutional question of whether or not possessing obscene matter is a crime. The Court’s decision overturned those of the lower courts and stated that the 1st and 14th Amendments prohibit making possession of obscene material a crime. The majority vote felt that Stanley obtained a right to privacy in his home and a right to the pursuit of happiness, which can be achieved in various ways.

The next Supreme Court case, Kelley v. Johnson (1976), deals with the right to privacy in terms of personal appearance and uniform. The police department of Suffolk County, New York enacted regulations regarding hair-styles of all police officers. The regulations described the correct style and length of facial and head hair. The regulation were the carried to the court under the statement that they violated the 1st and 14th Amendment to a protection of freedom of expression. The Court of Appeals and the District Court both ruled that the regulations were unconstitutional because there was no rationale for uniformity and the police force was not “para-military.”

The United States Supreme Court reversed the decisions of the lowers courts. The Court stated that because the police officers already had to wear uniforms, the addition of regulated hair styles would be added to the “uniform” list and would be a part of the 1st Amendment violations that police officers were required to accept. In addition, the Court stated that in order for the police force to have a “espirit du corps” and to be easily identifiable to the public, a regulated hair style would be necessary.

The decisions of the Supreme Court regarding the right to privacy have created a precedent for following historical issues pertaining to the same topic. Although the Constitution does not contain a “right to privacy,” both the 1st and 14th Amendments imply this right to privacy, along with other stated freedoms, and these are the rights that have essentially created the “free” nation in which we live.

John's blog on First Amendment cases-Freedom of Expression (Flag Burning)

The First Amendment reads:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The First Amendment is necessarily ambiguous in terms of specific application and occurrence of the liberties and freedoms outlined under it. The powerful rights outlined in the Amendment can just as easily be upheld in the strictest (or most philosophical) sense as they can be circumvented/overlooked at the specific interest of the government. As each following court cases show, decisions regarding broad freedoms, in this case the freedom of speech as well as expression, are subject to individual interpretation as well as the context in which a decision was made.

In 1968, a man named David Paul O’Brien (respondent), along with three companions, decided to protest the Vietnam War by burning their selective service papers on the steps of the South Boston Courthouse. After being indicted, tried, and convicted of violating the Universal Military Training and Service Act of 1948 (making it illegal to mutilate or destroy such certificates as amended in 1965) by the U.S. District Court for the District of Massachusetts(petitioner). O’Brien argued that the intent behind burning the certificates was, “so that other people would reevaluate their positions with Selective Service, with the armed forces, and reevaluate their place in the culture of today, to hopefully consider my position.” In the District Court, O’Brien argued that the 1965 Amendment was, “unconstitutional because it was enacted to abridge free speech, and because it served no legitimate purpose.” The case was taken to the Court of Appeals, which, contrary to the decision of the District Court, found the statute was in fact unconstitutional. From here the case went to the Supreme Court.

O’Brien took the fact that a person had to keep the certification and registration certificates of the Selective Service in their possession at all times to be a suppression of his First Amendment Rights as it prevented him from expressing his personal opinions. This argument caused the Justices to reflect on what actually constitutes “speech” or legitimate expression and to what criteria does a form of expression have to meet to be labeled as “sufficiently imbued with elements of communication.” This issue of whether or not an act or a person’s conduct clearly reflects/implies a particular disposition or idea is the precedent for which this case begins: that of symbolic speech protected by the First Amendment.

Nevertheless, despite this interesting crux, the Justices were able to avoid it altogether in making the final adjudication on the case at hand. In response to O’Brien’s claim that the 1965 Amendment abridges free speech, Justice Warren wrote, “The Amendment does not distinguish between public and private destruction, and it does not punish only destruction engaged in for the purpose of expressing views.” Here, he is saying that the charges are not based on O’Brien’s viewpoints or his expression, but rather the violation of federal law, which happened to coincide (or manifest itself) with O’Brien’s expressive conduct. To clarify, it was said, “when ‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms… we think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest… and if the incidental restriction on alleged First Amendment freedoms is no greater than it is essential to the furtherance of that interest.” This makes much sense on the surface, as the government may have to side step a certain “freedom” or legitimate argument if, all in all, the general action or undertaking of particular conduct is illegal in its nature. However, many feel the sentiment behind this resolution was actually that to suppress “dissident” individuals in a time when anti-war protests were common and the Vietnam War was not very popular. Some feel the intention of allowing the temporary overlook or suppression of the First Amendment is a way of effectively quelling any agitating or boisterous form of expression; the very kind that the First Amendment was intended to protect.

O’Brien provides the perfect example as if someone wants to express themselves, the act and or conduct in which the expression is manifested must not only have undeniable expressive symbolism, but it must also fall within the realm of the law. Here, the thought behind the burning of the Selective Service papers was not brought under scrutiny (though many may argue to the contrary) but the means of expression were deemed clearly outside the boundaries of the law as to illicitly defeat the original thought and power Congress had in passing the 1965 Amendment. To justify this, the Supreme Court agreed that the powers Congress has in raising and supporting armies is “necessary and proper” and that O’Brien’s actions interfered directly with their intentions of Congress. It was said, “Congress has a legitimate and substantial interest in preventing their wanton and unrestrained destruction… [as] destruction of cards would disrupt the smooth functioning of the Selective Service System.” In this way, the Supreme Court affirmed the judgment of the District Court as none of O’Brien’s several tapering arguments held any ground in the end. There will always be the possibility that the Court’s decision was largely influenced by the “nature” of O’Brien’s opinions and future Court decisions would shed more light onto the effect/nature of the messages being expressed, and the outcome of the case.

The Constitutional questions addressed in the case were twofold. The issue of the extent to which the First Amendment protects symbolically expressive conduct/behavior was addressed, as well as the ability for the government to disregard certain freedoms if a particular issue is interpreted as being more significant and necessitates the sacrifice. Also, the case had precedence by developing the “O’Brien test” in which a law is examined to see whether or not it regulates the freedom of speech in a way violating the First Amendment (or intentionally designed to prevent negative expression).

In 1970 with the case of Schacht v. United States, Daniel Jay Schacht (petitioner) was accused by a District Court (respondent) of violating a law making it illegal for anyone “without authority [to wear] the uniform or a distinctive part thereof… of any of the armed forces of the United States…” Another law regarding military uniforms was also in effect stating, “While portraying a member of the Army, Navy, Air Force, or Marine Corps, an actor in a theatrical or motion-picture production may wear the uniform of that armed force if the portrayal does not tend to discredit that armed force.” Schacht performed a theatrical “skit” in Houston with a few fellow actors in which they depicted a military scene in Vietnam in an attempt to express their discontent with the war. The argument of the District Court was that Schacht was not officially acting and was should not be treated as a “theatrical production” in its own right. Furthermore, the court found fault with the negative sentiments the skit regarding America’s involvement in Vietnam.

Once this case reached the Supreme Court, it was quickly decided that a theatrical performance does not have to be defined by convention such as performances that typically take place on stages in theaters. Furthermore, the Supreme Court Justices found fault with the clause saying, “…it becomes clear that Congress has in effect made it a crime for an actor wearing a military uniform to say things during his performance critical of the conduct of or policies of the Armed Forces. An actor, like everyone else in our country, enjoys a constitutional right to freedom of speech, including the right to openly criticize the Government during a dramatic performance.” With this, the clause was “stricken” from the section, Schacht was acquitted, and it became legal to put on a performance that was critical of the government as a freedom of expression under the First Amendment.

A few years later in 1974, the case of Spence v. Washington reached the Supreme Court. A few years prior, a college student named Spence hung his own American flag out of his apartment that was upside down and had a peace symbol on both sides of the flag (formed from tape) as a way of protesting the Cambodian incursion and the Kent State Massacre. The appellant said in his defense, “I felt there had been so much killing and that this was not what America stood for. I felt that the flag stood for America and I wanted people to know that I thought America stood for peace.” After being tried and found guilty by a jury, the case was addressed by the Supreme Court. The issue proved to be significant in the minds of all of the justices as there seemed to be division in their final decision. What came to be was an understanding that the private ownership of the flag, as well as the temporary nature of the symbol made it so that it was clearly a form of expression protected under the First Amendment. It was said. “But the nature of the appellant’s activity, combined with the factual context and environment in which it was undertaken, lead to the conclusion that he engaged in a form of protected expression… On this record there can be little doubt that appellant communicated through the use of symbols. The symbolism included not only the flag but also the superimposed peace symbol.” Here, it seems that the fact that the symbol is “enhancing” the strong meaning of the flag, it was easier for the court to make the decision that such expression was protected under the First Amendment, though the Court never really addressed whether permanent destruction or alteration was a protected form of expression when it comes to the flag. Furthermore, the special place the flag held in people’s hearts (as it is regarded as embodying all of the values of America) was evident in Justice Rehnquist’s dissent. Rehnquist seemed to agree with the state that the flag was not justice a typical median to express an idea. His logic was, “The Court has further recognized that even protected speech may be subject to reasonable limitation when important countervailing interests are involved… The right to free speech, though precious, remains subject to reasonable accommodation to other valued interests… It [the state’s decision] simply withdraws a unique national symbol from the roster of materials that may be used as a background for communications.” From this it seems that though it was generally recognized that the flag was an important American symbol, the decisions on the issue were split. The issue addressed was similar to O’Brien’s in that there was still subjectivity when it came to deciding what constitutes free speech/expression. Were some items to be left out of protection by the First Amendment? The following case develops this issue regarding the flag further.

The next major flag burning case took place in 1989, a few years after the “Republican War Chest Tour” in which demonstrators protested the policies of the Reagan administration and certain corporations in the Dallas area. One day while protesting, a man named Gregory Lee Johnson was handed an American flag and promptly burned it in front of Dallas City Hall. He was charged with the “desecration of a venerated object in violation of Texas Penal Code.” He was convicted and sentenced to one year in prison as well as a $ 2,000 dollar fine. The Texas Court of Criminal Appeals denied to agree with the conviction and was granted certiorari allowing the case to go to the Supreme Court. To come to a decision, the court, based on precedence and insight gained from passed cases, had to interpret the specific actions of Johnson as well as the nature of the charges that the state of Texas brought against him and compare the two. Drawing from the O’Brien case, the Court was determined to use the “O’Brien’s test” to determine whether or not the state was justified in suppressing Johnson’s free speech assuming his conduct was protected under the First Amendment.

In speaking about the nature of the American flag, it was said, “The very purpose of our national flag is to serve as a symbol of our country; it is, one might say, ‘the one visible manifestation of two hundred years of nationhood’…Pregnant with the expressive content, the flag as readily signifies this Nation as does the combination of letters found in ‘America.’” It was clear that the justices regarded the flag as a very symbolic and meaningful mode of embodying and “communicating” the almost sacred principles of the country. The Court acknowledged that Johnson’s conduct was clearly associated with the renomination of Ronald Reagan and his administration. Johnson said, “The American Flag was burned as Ronald Reagan was being renominated as President. And a more powerful statement of symbolic speech, whether you agree with it or not, couldn’t have been made at that time. It’s quite the just position [juxtaposition]. We had new patriotism and no patriotism.” From this, the Court concluded that Johnson’s actions were protected under the First Amendment as it stands. Now, the Court had to analyze if the arguments of the State validated a restriction of that right.

The defense of the accusation made by the state of Texas against Johnson was that it was done in “preventing breaches of peace and preserving the flag as a symbol of nationhood and national unity.” The court said the breach of peace defense was unfounded in that the very freedom of speech American’s have is designed to ensure their right to invite dispute, avoid any sense of complacency or repression, and even to stir people to anger. It was also seen as a far stretch to imply that the expression of one person will provoke violence or any other illegal reaction. In this way, Johnson’s conduct was very consistent within the thought behind the First Amendment. In this way, the issue became whether or not the states interest in preserving the uniquely special or almost “sacred” nature of the flag was legally justifiable.

This seemed to put the Court in a bit of an exposed, yet admirable position as the justices clearly regarded the flag as a timeless emblem of this nation, (seemingly admitting the sheer offense of Johnson’s action) though felt that the issue at hand was not subject to biased regard, but rather the rights of the Constitution for which the flag represented (in this way praising the flag). Seemingly with an understanding/sympathy for the sentiments of the state, though a determination to uphold the values of the Constitution, the Court said, “We have not recognized an exception to this principle even when our flag has been involved… In short, nothing in our precedents suggests that a State may foster its own view of the flag by prohibiting expressive conduct relating to it… the point of our prior decisions; their enduring lesson, that the government may not prohibit expression simply because it disagrees with its message, is not dependant on the particular mode in which one chooses to express and idea.” It was also said that government should have no role in deciding what forms or symbols one may express himself in as this would be adding an abstract and subjective interest when it comes to law and regulation. The First Amendment and the Constitution itself was designed to prevent this kind dangerous control. Similarly, it was concluded that, “There is, no indication…that a separate juridical category exists for the American flag alone.” In this way, the flag is no exception to he First Amendment and is a valid medium of expression under law. To conclude the case with a philosophical tone, upon the absolution of Johnson’s charges by the State it was said, “We are tempted to say… that the flag’s deservedly cherished place in our community will be strengthened… by our holding today. Our decision is the reaffirmation of the principles of freedom and inclusiveness that the flag best reflects, and of the conviction that our toleration of criticism such as Johnson’s is a sign and source of our strength.” To finally authenticate the Court’s decision, it was said, “We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents.”

Several justices dissented to the ruling on the basis that the flag does indeed mandate special protection because of the intensely representative and associative elements such a symbol has. It was almost as if destruction to such an item was a direct attack against the freedoms and liberties, or the very essence of this nation. However, in regarding the case on a “personal level” the justices (Rehnquist and O’Connor) seems to act out of anger towards the conduct of Johnson and relate such a reaction to the reaction the majority of people would have to such an act. It was said, “Surely one of the high purposes of a democratic society is to legislate against conduct that is regarded as evil and profoundly offensive to the majority of people…” The flip side to protecting the interest of many, at least in democracy, is to be consistent and true in saying that it is just as much governments duty to protect the legally valid interests of the minority and make sure they receive the same protection and freedoms under the Constitution as the majority.

The trend among all of these cases regarding the extent to which the First Amendment applies to expression, what constitutes expression whether symbolic or concrete, and by what means can the government regulate such rights has shown the subjectivity and variance in opinion and response when it comes to interpreting law. Oddly enough, it seems that often judicial decisions must be made largely on precedence, morality, and a general understanding of the sentiment behind a law or Amendment when resolving issues that seem to only gain in complexity and abstraction. Though the Supreme Court Justices often address yet avoid far reaching philosophical enigmas, the trend in precedence begins to really tug at the fundamental beliefs of America and the rights, particularly of the First Amendment, on which it was outlined though many of the specific arguments may be of a nature in which a definitive, unbiased, and consistent decision is not sufficient or attainable (from person to person, item to item, or one behavior to another). Such is the reality when dealing with the First Amendment and the iffy nature of free speech and expression in a democracy.

Yahya's late blog on Elections and Term Limits

Elections and Term limits: The Debate over the 2000 election, the Due process of law, and the power of the Supreme Court

These cases come to touch upon the heart of the text book definition of democracy: “free and frequent elections.” In these cases we come to see controversy over the power of the judicial system as seen in the 2000 election and the consistent “No’’ from the supreme court when it came to term limits because its lack of constitutionality, and its encroachment upon our democracy.

In the cases of term limits the decisions ended up being blow outs against all laws pertaining to term limits, the first case was decided in seven to two decision and the next was decided in a sweep.

In the case US Term Limits, Inc vs Thornton the Supreme Court came to the decision of keeping the playing field level for elected officials across the US. The case started by a proposition that proposed amendment number 73 to the state constitution of Arkansas.
This proposition made into law that all elected representatives will serve no more than two terms in office and it was taken to court on the basis of unconstitutionality, and being undemocratic. However there are quite a few good counter arguments to both of these points. How could this law be unconstitutional when the constitution never specifies term limits for anyone except for the president, and also in the tenth amendment it states that all powers that are not specifically enumerated in the constitution shall shall be decided by the states. And so it makes sense that people of Arkansas to their own democratic initiative to exercise their power, by proposition, which was given to them in the constitution, and so this law seems to be democratic. This law is presents itself to democratic because it reflects on the will of the people and how they wished to be governed. The reason that this law was to keep elected officials honest by making them think of their constituencies instead of reelections. But dont you win elections by making our constituents happy? But also their is the fact that once an elected official has won office their percentage of winning an election is all the way at 95% or higher. As democratic and constitutional as this law seemed to the people of Arkansas, it broke one important tenet of our democracy. The law in Arkansas violates the due process of law for the official that wants to run for office in Arkansas. It disenfranchises the official from serving their country, while no other state imposes this law, and hence makes an uneven battlefield for elected officials.

In Cook vs Gralike the Supreme court had an easier decision to make. A law by proposition in Missouri placed one specific fact pertaining to a person running for office about their stance on the implementation of term limits next to their name on the ballot. This was also both democratic and undemocratic. it was democratic because it clearly defined the person running for office via their stance on policies, and so helped the voter make a much more informed decision when it came to election time. However, the case became easier to decide upon because the statute in Missouri was to only put the person running for office’s stance on term limits, the ballot read, “Disregarded voter’s instruction on Term Limits” or “Declined to pledge to support term limits.” What this rhetoric did was that it boiled the entire campaign of someone running for office into one stance, and then fed it to the voter during the time that is most crucial when it comes to elections: the time right before the the ballot is cast. This violated the due process of law of the person running for office. However, it is not a bad idea if all of the candidates’ stances are listed, and if the rhetoric is not filled with such mal-intent.

The Election of 2000 set the precedent for being the first of its kind when it came Supreme Court decisions. The case Bush vs Palm Beach was simply the precursor for the next case, and deciding case, Bush vs Gore. The first case began on November 8, 2000, a day after the election. In the election Florida was the deciding factor, and at the end of the race it was still to close to call. According to the official count at the time Governor Bush won by a grand total of less than 2000 votes, which was less than one half of one percent. A Florida state statute claimed that if any election came that close to call an automatic recount would be ordered. After the next recount the margin of victory for Governor Bush became even smaller, and that is where this suit picks up. Vice President Al Gore demanded a re-recount in four counties: Volusia, Miami-Dade, Palm Beach, and Broward. The suit was over whether or not their should be a recount in those counties, and in Florida circuit court decided to that there would be a seven day dead line, and then the Secratary of the State of Florida would decide whether or not to include the recount. This is extremely sketchy because the secretary is on the payroll of Candidate Bush’s brother, Jeb Bush, the Governor of Florida. The case was taken to
the Supreme Court which decided that the Florida Supreme Court should have not gotten involved with the case at all and that the case should be handed over to the state legislature.

This decision became all the more weird in Bush v Gore. The case centered around the recounting of the ballots in the state of Florida. Vice President Gore wanted a the recount to count, while Governors Bush did not want the ballots to count. The Supreme Court makes a decision that is contrary to the decision it made in Bush v Palm Beach. The Supreme court grants a stay to the case. The reason the Supreme Court granted the stay was because of the lack of standards in the Floridian voting system, and because of these lack of standards the recount would simply become arbitrary. However, according to the Supreme Courts own reasoning it should have referred the case to the Congress of the United States where all other presidential issues had been resolved in out history. The Supreme Court’s decision to grant a stay in the recounting process gave George W Bush the presidency in the 2000 election. But, also the Supreme Court stated that this decision should not be made a precedent for upcoming elections. This is weird because the court understood that what it was doing something questionable.

In conclusion we come to see the power of Supreme Court as stated in the constitution, but we also come to see the power that the court has come to set for itself. The most interesting things that I found was how easy it was to argue both ways in all of the cases, and how the arguments could have been so much more effective if the issue at hand would have been taken one step further, such as with Cook vs Gralike by making the ballots include actual stances on policies by the candidate instead of having to make an important decision blindly.

Ali's Blog on Abortion posted by DB

In mid 20th century, two cases before the US Supreme Court stand out as major legal (and resulting social) landmarks of that era. The first was the 1954 decision Brown v The Board of Education which set the legal groundwork for the elimination of this nation’s segregated schools The second case was the 1973 ruling of Roe v Wade, which together with its two successor rulings are the subject of this blog.

The14th Amendment, states that “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” But as to the deciding question of the unborn, the Constitution is more vague, as was the case in Texas in March of 1970, for Jane Roe. The Texas statutes (Arts. 1191-1194 and 1196 of the State's Penal Code) at the time stated that it was a crime to “procure an abortion,” or to attempt one, with the only exception being to save the life of the mother, as advised by a physician. Abortions first became classified as a criminal act in Texas in 1854, and remained so until the decision of the Supreme Court in Roe v. Wade.

Roe, a single woman, brought her case against Wade, respondent and District Attorney of Dallas County, Texas, seeking “a declaratory judgement that the Texas criminal abortion statutes were unconstitutional on their face, and an injunction restraining the defendant from enforcing the statutes.” Roe wanted to be able to legally terminate her pregnancy by a licensed and competent physician in safe conditions with no threat to her health. Because Roe’s pregnancy was not visibly life-threatening, she was forbidden from procuring a legal abortion in the state of Texas. Roe’s claim was that “the Texas statutes were unconstitutionally vague and that they abridged her right of personal privacy, protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.” Roe purported to sue "on behalf of herself and all other women” in similar situations.

Licensed physician James Hubert Hallford requested that he be allowed to intervene in Roe’s action. Hallford had been arrested on two previous violations of the Texas abortion statutes, and claimed that he was “unable to determine whether they fell within or outside the exception recognized by Article 1196.” Hallford backed up Roe’s claim, and added that the Texas laws were not only vague, but in full violation of the Fourteenth Amendment, mainly that “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Hallford also stated that the statutes violated his right to practice medicine, and his patients’ rights to privacy, as granted by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.

Thus, the constitutional questions that were raised were: if the unborn can be classified as possessing full, legal citizenship, and the right of a woman to control her own physical being in the circumstances of pregnancy. Do the unborn receive a “right to life?” Or should a fetus be seen as an extension of their mother, and thus, not a full person, with no separate rights or privileges? The court ruled that the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn, and thus, a fetus does not receive individual rights.

The court further ruled that “A state criminal abortion statute of the current Texas type, that excepts from criminality only a lifesaving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment.” In other words, abortions are permissible for whatever reason, up until the fetus is viable, (able to survive outside the mother’s womb or with life sustaining assistance, such as an incubator.) Viability is generally placed at about 28 weeks after conception. Prior to this, for an abortion to take place, the “decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician.” The state is allowed “to regulate the abortion procedure in ways that are reasonably related to maternal health,” subsequent to the end of the first trimester. Reasonably, the state still holds the right to regulate and possibly prevent abortion in the case that “the preservation of the life or health of the mother” is threatened. Basically, Roe v. Wade supports what is today referred to as ‘pro-choice.’

Griswold v. Connecticut involved Estelle Griswold, (Executive Director of the Planned Parenthood League of Connecticut) and Dr. C. Lee Buxton, (a licensed physician and a professor at the Yale Medical School who served as Medical Director for the League at its Center in New Haven), who jointly appealed a lower court which ruled against them. The Center was in operation from November 1 to November 10, 1961, on which date both Griswold and Buxton were arrested for operating the clinic. The Center functioned to give “information, instruction, and medical advice to married persons as to the means of preventing conception.” Appellants would examine the wife and prescribe a contraceptive device. In most cases fees were charged, though a few couples were examined for free.
Connecticut law at the time prohibited the use and prescribing of contraceptives. Statutes of the state of Connecticut (1958) whose constitutionality was involved in the appeal are 53-32 and 54-196. Section 53-32 requires that "Any person who uses any drug, medicinal article or instrument for the purpose of preventing conception shall be fined not less than fifty dollars or imprisoned not less than sixty days nor more than one year or be both fined and imprisoned." Section 54-196 states "Any person who assists, abets, counsels, causes, hires or commands another to commit any offense may be prosecuted and punished as if he were the principal offender." Both appellants were found guilty of committing these offenses, and were fined $100 each.

Upon appeal to the United States Supreme Court, the final ruling was that the Constitution protected an individual’s right to privacy. The law prohibiting contraceptives was invalidated on the grounds that it violated a right to marital privacy.

In the case of Planned Parenthood of Southeastern Pennsylvania v. Robert P. Casey, the newly instituted Pennsylvania Abortion Control Act was accused of being unconstitutional. According to the landmark case of Roe v. Wade, abortions are a woman’s right, and are protected by the Due Process Clause of the Fourteenth Amendment. Five provisions of the Pennsylvania Abortion Control Act were challenged. These were the laws of “spousal notification,” “parental consent,” the required 24-hour waiting period before receiving an abortion, the “informed consent,” and lastly, the law that imposed reporting requirements on abortion clinics.

The state of Pennsylvania defended the act, as well as arguing that the monumental decision of Roe v. Wade should be overturned. The plaintiffs were a collective group of abortion facilities and physicians providing abortions. The case was first filed in the United States District Court for the Eastern District of Pennsylvania, and the act was ruled as being unconstitutional. The case was then presented to the Court of Appeals that also affirmed the decision of the act as being unconstitutional. All provisions in the legislation were upheld with the exception of the husband notification rule. With the case before the Supreme Court, it was suggusted that the ruling on Roe v. Wade be reconsidered, yet the majority vote between the justices was to reaffirm the final decision on Roe.

The decisions of the Supreme Court in the abortion- related cases of Roe v. Wade, Griswold v. Connecticut and Planned Parenthood v. Casey, have all led to the extension of women’s rights and liberties as well as defining the rights of the unborn. The latter two rulings served to clarify the more fundamental Roe v. Wade and thus extended it’s applicability and social impact. In the aggregate, they stand as among the most significant rulings of the courts in our nation’s history by reason of their decisive clarity and the ongoing divisiveness they have engendered.

Student Searches: Violating the Fourth Amendment?

The Supreme Court decisions of New Jersey v. T.L.O., Vernonia School District v. Wayne Acton, and Pottawatomie v. Earls set the precedent for all future Supreme Court decisions regarding the Fourth Amendment. These three cases were each based upon the application of the Fourth Amendment to the school environment. The Fourth Amendment states that American citizens have the right “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” However, this amendment makes no point of defining “unreasonable searches or seizures,” which allowed the Supreme Court to interpret that meaning in the following three cases, causing a greater limit on students’ rights to privacy.

New Jersey v. T.L.O. was decided on January 15, 1985. The respondent of this case was T.L.O., a fourteen-year-old high school freshman girl, who was caught smoking cigarettes in a school bathroom by a teacher of Piscataway High School in Middlesex County, New Jersey. The teacher then reported T.L.O. and another girl to the principal, because smoking cigarettes was against one of the school rules. Assistant Vice Principal Theodore Choplick questioned T.L.O., who denied the fact that she had been smoking in the lavatory; although her friend admitted to it, T.L.O. claimed that she never smoked. Mr. Choplick then took T.L.O. into his private office and looked through her purse, finding a package of cigarettes. However, upon removing the cigarettes from her purse, Mr. Choplick then discovered a package of cigarette rolling papers (which are generally associated with marijuana). He then decided to search the purse completely, not only finding marijuana and a pipe, but also many plastic bags, a lot of money in the form of one-dollar bills, a piece of paper of the names of students who owed T.L.O. money, and two letters implicating T.L.O. as a marijuana dealer.

After T.L.O. was taken into the authorities by her mother (through a request from the school) and charged to hear before the Juvenile and Domestic Relations Court of Middlesex County, T.L.O. “moved to suppress the evidence found in her purse as well as her confession, which, she argued, was tainted by the allegedly unlawful search.” Although the juvenile court and the Court of Appeals did not recognize the violation of the Fourth Amendment in the case of T.L.O., her appeal to the Supreme Court of New Jersey brought about the reversal of the decisions of the lower courts. However, the State of New Jersey then petitioned to have the case tried in front of the Supreme Court, where it reversed the decision of the State of New Jersey.

One of the major questions of this case is “whether [the Fourth] Amendment’s prohibition on unreasonable searches and seizures applies to searches conducted by public school officials.” Although the Supreme Court holds that it does, it then goes on to say that “the legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search.” Because, however, the Supreme Court found the search of T.L.O.’s purse by Mr. Choplick to be reasonable—Mr. Choplick had a reasonable suspicion that the purse contained cigarettes (T.L.O. had been caught smoking them) and the discovery of the marijuana and drug paraphernalia was reasonable because of the suspicion caused by the detection of the rolling papers—the Supreme Court reversed the decision of the Supreme Court of New Jersey and determined that Mr. Choplick’s search(es) were not in violation of the Fourth Amendment.

The next Supreme Court case regarding the violation of the Fourth Amendment was Vernonia School District v. Wayne Acton, which was decided June 26, 1995. The petitioner of this case, Vernonia School District, had problems with drugs in its town of Vernonia, Oregon, especially among athletes, who were described as “the leaders of the drug culture.” Because of this, the school district decided to create the Student Athlete Drug Policy, which would drug test all athletes, not only to prevent student athletes from using drugs, but also to protect them, since “drug use increases the risk of sports-related injury.”

The respondent to this case, James Acton, was a seventh grader who wanted to join the school football team. However, he was not allowed on the team because he and his parents refused to sign the forms which would consent to allowing Acton to be tested for drugs. “The Actons filed suit, seeking declaratory and injunctive relief from enforcement of the Policy on the grounds that it violated the Fourth and Fourteenth Amendments to the United States Constitution.”

The Supreme Court decided that Vernonia School District was not in violation of the Fourth Amendment. They stated that not only should athletes have a reduced expectation of privacy, because “there is an element of communal undress inherent in athletic participation,” but also that “the privacy interests compromised by the process of obtaining the urine sample are in our view negligible.” Therefore, because “the Policy was undertaken in furtherance of the government’s responsibilities, under a public school system, as guardian and tutor of children entrusted to its care,” the Supreme Court found that Veronia’s Student Athlete Drug Policy was reasonable and therefore constitutional.

The most recent Supreme Court decision regarding student searches was decided on June 27, 2002. This case, Board of Education of Independent School District No. 92 of Pottawatomie County, et al., v. Lindsay Earls et al., was very similar to the case of Vernonia v. Acton, in that the Pottawatomie School District held mandatory drug testing for its students. However, unlike Vernonia, Pottawatomie extended the required drug testing to all its middle school and high school students participating in any extracurricular activities. The respondents, Lindsay Earls and Daniel James, who both participated in extracurricular activities including the Academic Team and the marching band, brought a suit against the School District, because they claimed that it violated their rights as specified by the Fourth Amendment.

“Applying the principles of Vernonia to the somewhat different facts of this case, [the Supreme Court] conclude[d] that Tecumseh’s Policy [was] also constitutional.” The Supreme Court found that “while schoolchildren do not shed their constitutional rights when they enter the schoolhouse, Fourth Amendment rights are different in public schools than elsewhere; the reasonableness inquiry cannot disregard the schools’ custodial and tutelary responsibility for children.” In other words, because the school takes on the responsibility of the children enrolled there, it also may invade the privacy of students in “reasonable” circumstances, as in the suspicion of health-harming drugs. The Court goes on to say that “the invasion of students’ privacy is not significant” because the drug test results do not lead to academic or disciplinary consequences and are shown to a limited amount of people. Drug testing is in the best interest of the students, because the school can then do its best to protect the health and safety of its students.

Because the definition of “unreasonable searches or seizures” is not specifically defined in the Constitution, the Supreme Court set the precedent of testing reasonableness in searches and seizures in the case of New Jersey v. T.L.O. Therefore, students’ rights to privacy have become increasingly limited over time because of the concern for the safety and protection of students—a “reasonable” justification to the violation of the Fourth Amendment. Eventually, the Supreme Court could justify any actions towards students by any responsible institutions as reasonable for the security and well-being of students—perhaps allowing for required drug testing in all schools, causing students to have no privacy whatsoever. The question this raises, however, is where does this “reasonability” end? Will colleges and employers also be able to justify the complete lack of privacy shown towards students and employees in searches or seizures as being reasonable to protect the interests of their institution and their students or employees?