To:       Teachers of Constitutional Law in high school

From:   Rich Kitchens, Director, Constitutional Law Education Project (CLEP) (http://conlawed.com) (Email us at: rich@conlawed.com)

Sub:     Newsletter #362 (June 24, 2009) – First Summer 2009 Newsletter

 

This is an occasional FREE newsletter for the teachers of Constitutional Law (4^th) and others interested in teaching such a subject to high school students. Currently, it goes out to more than 160 teachers.  It is organized to suggest strategies in each of the five units in the Constitutional Law (4^th)  text. Of course, you can use any of this information without the text as well. More information can be obtained by using the Teacher’s Guide to Constitutional Law (4^th), published by the CLEP.

 

If you wish to be removed from this newsletter mailing list, please reply with the designation “Remove” in the subject box.

 

Please let us know what you would like to see in this newsletter as it evolves. To view past issues of the newsletter, contact Rich Kitchens at our email address. To see Rich Kitchens’ classroom, check out: http://www.edutopia.org/room-learn-speak-your-mind

 

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General Articles, Hints and Reminders:

 

New HBO documentary spotlights First Amendment [First Amendment Center, 6/22/09]: Hundreds of First Amendment supporters gathered at the Newseum June 18 to watch an upcoming HBO documentary, “Shouting Fire: Stories from the Edge of Free Speech,” by Oscar nominee and filmmaker Liz Garbus. The film will debut June 29.

http://www.firstamendmentcenter.org/news.aspx?id=21728

 

For updated news on teachers and legal issues in California, go to:

http://www.teacherlaw.com/TeacherLawNews.html

 

California schools to get billions that voters rejected [Sac Bee, 6/21/09]: Voters said no, but Democratic lawmakers are pushing to do it anyhow. The issue involves billions of dollars and a ballot measure so important to schools that the CTA spent more than $7 million in a failed attempt to pass Prop 1B.

http://www.sacbee.com/topstories/story/1963911.html

 

Schwarzenegger seeks online revolution in schools [AP / Wash Post, 6/11/09]: In the state that gave the world Facebook, Google and the iPod, Gov. Schwarzenegger says forcing California's students to rely on printed textbooks is so yesterday. The governor recently launched an initiative to see if the state's 6 million public school students can use more online learning materials, perhaps saving millions of dollars a year in textbook purchases.

http://www.washingtonpost.com/wp-dyn/content/article/2009/06/10/AR2009061003096.html

 

I. Introduction to Law, the Constitution, and the Supreme Court

[See TOPICS 1-10 in the 4^th edition of Constitutional Law]

Some recent articles that are relevant to this unit:

Editorial: A Clear Case for Impeachment [NY Times, 6/12/09]: Judge Samuel Kent, who wants to be paid his salary while in prison, should be removed from the bench if he does not resign.

http://www.nytimes.com/2009/06/12/opinion/12fri4.html

 

House Impeaches Imprisoned Federal Judge [NLJ, 6/22/09]: The House of Representatives approved four articles of impeachment against Judge Samuel Kent, who is serving time in a federal medical facility after pleading guilty to obstructing an investigation into allegations of sexual harassment. House members said that Kent forced them to vote by his refusal to resign. "This is the first time a federal judge has been convicted of a felony, has reported to prison, and has still not resigned from his office. This shows how deep Judge Kent's audacity truly runs," said one.

http://www.law.com/jsp/article.jsp?id=1202431617973

 

The U.S. Supreme Court [TOPICS 7, 8, 9, 11, 12]

 

Vikram Amar, “What is Fair Game for the Sotomayor Hearings?” Writ, 6/19/09: Professor Amar considers which topics Supreme Court nominee Sonia Sotomayor, previously a judge on the U.S. Court of Appeals for the Second Circuit, can properly be asked about during her confirmation hearings. Amar contends that questions about Sotomayor's substantive legal views are fair game. He also finds questions about her judicial temperament to be legitimate -- but only if they cite specific instances when she is claimed to have been intemperate, so that she has a fair chance to rebut the accusations. Amar argues, too, that it is fair to ask Judge Sotomayor about her famous "wise Latina woman" comment, and that she would be well-advised to modify the view stated there, by retracting the claim that a wise Latina woman's decision would be "better" than that of a white man. However, he notes that her core point -- that one's background influences one's judgment -- is entirely mainstream and legitimate -- and has been accepted by the Supreme Court itself in contexts such as jury diversity, and by Justice Alito in his own confirmation hearing.

http://writ.news.findlaw.com/amar/20090619.html

 

Lawyers give Sotomayor high marks [First Amendment Center, 6/15/09]: Attorneys praise nominee for knowledge of First Amendment law, preparedness at oral argument.

http://www.firstamendmentcenter.org/analysis.aspx?id=21699

 

Is Sotomayor a Judicial Activist? New Studies May Shed Some Light [NLJ, 6/8/09]: In her Supreme Court confirmation hearings, Judge Sonia Sotomayor will soon answer her critics' accusations of judicial activism -- a familiar drumbeat today wherever a judge or a nominee sits on the political spectrum. http://www.law.com/jsp/article.jsp?id=1202431272514

 

High court takes case involving bankruptcy advice [First Amendment Center, 6/9/09]: Law firm challenging consumer-protection law that restricts attorneys' ability to advise clients to incur more debt before filing for bankruptcy.

http://www.firstamendmentcenter.org/analysis.aspx?id=21679

 

Issue of Property Rights Is Likely to Arise in Sotomayor’s Confirmation Hearings [NY Times, 6/15/09]: Supreme Court nominees almost never comment on recent decisions from the court they hope to join. But both Chief Justice Roberts and Justice Alito broke with protocol and perhaps prudence at their confirmation hearings when it came to a decision that had been issued just months before, Kelo v. City of New London. 

http://www.nytimes.com/2009/06/15/us/15taking.html

 

Farewell, Justice Souter, defender of Mr. Jefferson’s wall [First Amendment Center, 6/21/09]: Few justices in recent memory have been more vigorous in defending church-state separation.

http://www.firstamendmentcenter.org/commentary.aspx?id=21721

 

On Language: Sotomayoralities [William Saffire in the NY Times Sunday Mag, 6/21/09]: Let the Senate Judiciary Committee pore over the 84 speeches by Judge Sonia Sotomayor, sent to its members via the White House, to help them examine her legal reasoning. This column’s job is to examine the nominee’s stands on language.

http://www.nytimes.com/2009/06/21/magazine/21FOB-safire-t.html

 

 

II. Defining the Political System: Federalism and Checks and Balances

[See TOPICS 11-15 in the 4^th edition of Constitutional Law]

Some recent articles that are relevant to this unit:

 

Michael Dorf, “The Obama Administration Defends the Defense of Marriage Act.” Writ, 6/17/09:  Professor Dorf comments on the controversy over the Obama Administration's decision to argue that the federal Defense of Marriage Act (DOMA) is constitutional -- despite President Obama's promise, when he was running for election, to sign (and not veto) future legislation repealing DOMA. 

http://writ.news.findlaw.com/dorf/20090617.html

 

Joanna Grossman, “When Same-Sex Couples Adopt: Problems of Interstate Recognition.” Writ, 6/9/09: Professor Grossman discusses some of the legal complexities that can affect same-sex couples who adopt children. After summarizing the current state of the law nationwide regarding same-sex couples' parenting, Grossman focuses on two recent cases from New York and Florida that both raise the following issue: What happens when same-sex partners become parents in one state, but then move to a state that does not accord the same protection to the partners’ respective parent-child relationships? 

http://writ.news.findlaw.com/dorf/20090617.html

 

Backers of legal pot eye ballot [SF Chron, 6/11/09]: With polls showing the legalization of marijuana gaining public support, and a state budget crisis fueling an ever-more-desperate search for revenue, backers of the first major statewide initiative to legalize marijuana for personal use - and allow counties to tax and regulate the drug - say they're preparing to get the matter on the November 2010 ballot.

http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2009/06/10/MNER184D84.DTL

 

The American Presidency [TOPIC 15]

 

Blaming the Guy Who Came Before Doesn’t Work Long [NY Times, 6/12/09]: As President Obama struggles to turn around the moribund economy and confront multiple international issues, he wastes few opportunities to remind the country that the problems are not of his making.

http://www.nytimes.com/2009/06/12/us/politics/12memo.html

 

 

III. The Political System: Voting and Campaigns

[See TOPICS 16-20 in the 4^th edition of Constitutional Law]

Some recent articles that are relevant to this unit:

 

Republicans Rethinking the Reagan Mystique [NY Times, 6/14/09]: President Obama has embraced Ronald Reagan’s achievements, while some Republicans question whether he’s the best example as they seek a path back to power.

http://www.nytimes.com/2009/06/14/weekinreview/14harwood.html

 

Supreme Court Tells Judges Not to Rule on Major Backers [NY Times, 6/8/09]: The Supreme Court ruled that elected judges must step aside from cases involving parties who have given them large campaign contributions. By a 5-4 vote in a case from West Virginia, the court said that a judge who remained involved in a lawsuit filed against the company of the most generous supporter of his election deprived the other side of the constitutional right to a fair trial.

http://www.nytimes.com/aponline/2009/06/08/us/AP-US-Supreme-Court-Judicial-Ethics.html

 

California budget Q&A: How did we get here? Where are we going? [Sac Bee, 6/22/09]: This is usually the time of year when state legislators begin sparring in earnest over the adoption of a new state budget for the fiscal year that begins July 1.

http://www.sacbee.com/topstories/story/1965327.html

 

Legislation and the Legislative Process (TOPIC 20)

 

Constitutional overhaul would omit Prop. 13 property tax changes [Capitol Weekly, 6/22/09]: The main group advocating for an overhaul of California's constitution is circulating draft initiative language that would bar a constitutional convention from changing the property tax portions of Proposition 13.

http://www.capitolweekly.net/article.php?xid=y2brqkw5fzt7dw

 

The Budget News That Really Matters [Cal Buzz, 6/15/09]: This week’s coverage of the budget mess will surely focus on the wars of words and heavy breathing arising from Sacramento committee hearings and press conferences – but the most far-reaching California political news will unfold at UCLA’s De Neve Plaza.

http://www.calbuzz.com/2009/06/the-budget-news-that-really-matters/

 

As state cuts funding, more districts turn to voters [LA Times, 6/15/09]: Facing multibillion-dollar state funding cuts, school districts across California are asking residents to tax themselves to fund local schools. Parcel taxes -- some topping $2,000 annually per family -- have been proposed this year from Sebastopol to San Marino.

http://www.latimes.com/news/local/la-me-parceltax15-2009jun15,0,1148647.story

 

 

IV. Criminal Law and Procedure (4^th, 5^th, 6^th, and 8^th amendments)

[See TOPICS 21-28 in the 4^th edition of Constitutional Law]

Some recent articles that are relevant to this unit:

 

Sherry Colb, “Kansas v. Ventris: The Supreme Court Misconstrues the Right to Counsel.” Writ, 6/11/09: Professor Colb comments on a recent Supreme Court Sixth Amendment right-to-counsel decision, and reflects on how well the decision does -- or does not -- square with prior Court precedent. As Colb explains, the decision required the Court to confront the following question: When police or prosecutors cause a suspect's cellmate to ask him about his alleged crime, can the damning answer the suspect gives to the cellmate (without the benefit of counsel) later be offered as inculpatory evidence against the suspect at trial, to contradict other, exculpatory statements that he makes? The Court said yes, but Colb contends that its ruling justifying that answer is incoherent -- and she points to serious problems, as well, with a closely-related Court precedent in this area of law.

http://writ.news.findlaw.com/colb/20090610.html

 

Marci Hamilton, “The Maturing of a Movement: Statute of Limitations Reform for Sex Abuse Victims.” Writ, 6/11/09:  Professor Hamilton discusses the progress of the movement seeking statute-of-limitations (SOL) windows for past child sex abuse victims, whose claims against abusers and the institutions that turned a blind eye to them otherwise could not be heard in court. Hamilton tracks the beginning of the movement via the Boston Globe's reporting on abuse within the Catholic Church, and the movement's subsequent unfolding in California. Then she focuses upon the arguments currently being made in New York, as abuse survivors seek SOL legislation, and upon the current political situation there.

http://writ.news.findlaw.com/hamilton/20090611.html

 

 

V. 1^st Amendment (Speech, Religion, Press and Assembly)

[See TOPICS 29-33 in the 4^th edition of Constitutional Law]

Some recent articles that are relevant to this unit:

 

California Supreme Court rules (finally) and upholds District in school mailbox case (San Leandro Teachers Association v. Governing Board of the San Leandro Unified School District) [6/18/09]: Shortly before an election, an employee organization that represents school teachers, and which regularly communicates with its members through school mailboxes, sought to distribute literature through these mailboxes that included endorsements of certain school board candidates. The school district administration refused to permit such political communication. The California Supreme Court upheld the Court of Appeal decision supporting the San Leandro school district’s “reasonable regulation” of school mailboxes. In so doing, the Court discussed what constituted a “service,” and what constitutes “equipment” under Education Code section 7054. In this First Amendment challenge prohibiting political communication via school mailboxes, the denial of the writ of mandate sought by the Plaintiff was affirmed where the mailboxes were a nonpublic forum, and the regulation was content-neutral.  For the full decision, go to:

http://www.courtinfo.ca.gov/opinions/documents/S156961.PDF

To read the story in the Oakland Tribune, go to:

http://www.insidebayarea.com/education/ci_12620198

 

9th Circuit Finds No First Amendment Violation in Teacher's Demotion Over Blog Comments (Wash. teacher learns what happens online doesn't always stay there) [NLJ / First Amendment Center, 6/22/09]: Delivering a blow to bloggers' rights, the 9^th Circuit Court of Appeals has ruled that a Washington state teacher's blog attacking co-workers, the union and the school district was not protected speech, and therefore she was not unlawfully demoted over it. The 9th Circuit found that Tara Richerson's speech was disruptive, eroded work relationships and interfered with her job performance, which involved mentoring teachers. The court also found her speech was "racist, sexist, and bordered on vulgar."

http://www.law.com/jsp/article.jsp?id=1202431620025

http://www.firstamendmentcenter.org/analysis.aspx?id=21732

 

Student can thank Jesus at graduation, UCLA says [AP, 6/11/09]: Administrators had initially barred Christina Popa from using Christian reference in personal statement to be read during upcoming ceremony.

http://www.firstamendmentcenter.org/news.aspx?id=21687

To read about graduation ceremonies, go to:

http://www.firstamendmentcenter.org/rel_liberty/publicschools/topic.aspx?topic=graduation_ceremonies

 

Fired Ohio teacher sues over accusations of preaching [AP, 6/11/09]: An Ohio school teacher fired over accusations that he preached Christianity in class says in a $1 million lawsuit that his free-speech and civil rights were violated. Eighth-grade teacher John Freshwater claims in federal court that his firing violated his free-speech, civil rights.

http://www.firstamendmentcenter.org/news.aspx?id=21688

 

Popular student site that posted insults shut down [AP, 6/10/09]: Maryland attorney general's office began investigating peoplesdirt.com after former student posted death threat.

http://www.firstamendmentcenter.org/news.aspx?id=21683

 

Landmark case set precedent on advocating force [First Amendment Center, 6/9/09]: In constitutional law, the United States Supreme Court occasionally plucks an unlikely litigant’s case out of literally thousands to establish seminal precedent. In the First Amendment arena, the Court declared important free-speech principles in the case of Ku Klux Klan member Clarence Brandenburg in Brandenburg v. Ohio (1969).

http://www.firstamendmentcenter.org/analysis.aspx?id=21677

 

Tracking the effects of Garcetti ruling [First Amendment Center Online, 6/15/09]: In his dissent in the 2006 case Garcetti v. Ceballos,Justice John Paul Stevens warned that the majority’s decision limiting public-employee First Amendment cases was “misguided.” A five-member majority ruled that public employees do not retain their First Amendment rights when their speech occurs as part of their official job duties. In Garcetti, the Court created an additional hurdle for public employees who assert First Amendment claims. They now must show that they are speaking as citizens instead of in connection with their official job duties.

http://www.firstamendmentcenter.org/collection.aspx?item=Garcetti_aftermath

 

Tobacco Regulation Is Expected to Face a Free-Speech Challenge [NY Times, 6/16/09]: The marketing and advertising restrictions in the tobacco law that Congress passed last week are likely to be challenged in court on free-speech grounds. But supporters of the legislation say they drafted the law carefully to comply with the First Amendment.

http://www.nytimes.com/2009/06/16/business/16tobacco.html

 

Pundits should be judged in court of public opinion [First Amendment Center, 6/14/09]: First Amendment protects advocacy, even when ideas being discussed are disliked, unpopular or even repugnant.

http://www.firstamendmentcenter.org/commentary.aspx?id=21692

 

Principal withholds student magazine because of tattoo story, cover [SPLC, 6/12/09]: A California principal has confiscated copies of a student magazine, claiming its cover image promotes gang life and telling its staff they cannot distribute the issue.

http://www.splc.org/newsflash.asp?id=1918

See the cover at: http://www.splc.org/pdf/PULPcover.pdf

 

Student apologizes after hiding profanity on cover of high school yearbook [SPLC, 6/18/09]: A student tasked with designing the cover of an Ohio high school yearbook slipped some profanity into the image, forcing administrators to temporarily halt distribution.

http://www.splc.org/newsflash.asp?id=1922

 

Julie Hilden, “Salinger Sues: His Challenge to an Unauthorized "Catcher in the Rye" Sequel.” Writ, 6/22/09: Hilden comments on a copyright suit that is ongoing in the U.S. District Court for the Southern District of New York. The suit pits "Catcher in the Rye" author J.D. Salinger against Swedish writer Fredrik Colting, who has written an unauthorized "Catcher in the Rye" sequel featuring a 76-year-old version of Holden Caulfield, and seeks to publish the book in the U.S. Hilden comments on Salinger's chances of prevailing in the suit, and on the underlying question whether the unauthorized sequel is likely to be protected as a parody or criticism of the original.

http://writ.news.findlaw.com/hilden/20090622.html

 

Marci Hamilton, “The Folly of the Federal Religious Freedom Restoration Act – and Texas's Too.” Writ, 6/23/09: Professor Hamilton points to two recent judicial decisions as strong evidence supporting her argument that the passage of federal and state Religious Freedom Restoration Acts (RFRAs) was a mistake. In one decision, a tiny town was forced to accept a religious group's halfway house for ex-convicts despite its contrary zoning regulation. In the other decision, a fire department was forced to allow firefighters' religiously-motivated wearing of facial hair, despite safety risks. Hamilton contends that both cases should have come out the other way, and that both show that RFRAs ask courts to go outside their proper role.

http://writ.news.findlaw.com/hamilton/20090623.html

 

 

VI. 14^th Amendment, Discrimination, Privacy, Working, Citizenship & Immigration

[See TOPICS 34-41 in the 4^th edition of Constitutional Law]

Some recent articles that are relevant to this unit:

 

Court Affirms Reimbursement for Special Education [NYTimes / School Law Blog, 6/22/09]: In a decision that could help disabled students obtain needed services and cost school districts millions of dollars, the Supreme Court ruled on Monday that parents of special-education students may seek government reimbursement for private school tuition, even if they have never received special-education services in public school. Although school officials had noticed the student’s difficulties and evaluated him for learning disabilities, he was found ineligible for special-education services. Only after he enrolled in the private school did doctors say the student had attention deficit hyperactivity disorder and other disabilities. Now, the school is out of pocket for the $5,200/month private placement. The case is Forest Grove School District v. T.A. For the full blog posting, go to:

http://blogs.edweek.org/edweek/school_law/2009/06/supreme_court_backs_family_in.html

http://blogs.edweek.org/edweek/school_law/2009/06/education_week_on_forest_grove.html

To read the case decision by the U.S. Supreme Court, go to:

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=08-305

To read the New York Times story go to:

http://www.nytimes.com/2009/06/23/education/23special.html

 

Support for gay marriage varies widely among racial and ethnic groups [LA Times, 6/20/09]: Overall, the poll showed a majority of voters in Los Angeles support the right of same-sex couples to legally marry, with 56% in favor and 37% opposed.

http://www.latimes.com/news/local/la-me-gaymarriage20-2009jun20,0,4871594.story

 

A Team’s Struggle Shows Disparity in Girls’ Sports [NY Times, 6/14/09]: Thirty-seven years after Title IX, the revolution in girls’ sports has largely bypassed the nation’s cities.

http://www.nytimes.com/2009/06/14/sports/14girls.html

 

California challenged on race-, gender-based contracts [Sac Bee, 6/12/09]: Anti-affirmative action advocate Ward Connerly and a Sacramento-based legal group on Thursday blasted President Barack Obama's administration and Gov. Schwarzenegger for a recently enacted policy that awards some state construction contracts based on race and gender.

http://www.sacbee.com/politics/story/1940170.html

 

California Same-Sex Couples Who Wed Out-of-State Remain in Limbo [The Recorder, 6/23/09]: Family lawyers representing California same-sex couples who wed out of state before the passage of Proposition 8 are hoping for the best, but bracing for the worst. Those marriages remain in legal limbo because last month's California Supreme Court ruling that upheld Prop 8 while letting stand approximately 18,000 same-sex unions didn't determine the fate of weddings held by California gays and lesbians in other states or countries. That issue wasn't before the court, so the justices chose not to tackle it.

http://www.law.com/jsp/article.jsp?id=1202431661707

 

The Law of Working [TOPIC 39]

 

Supreme Court Increases Burden on Age Bias Plaintiffs [NLJ, 6/19/09]: A sharply divided U.S. Supreme Court on Thursday made it more difficult for employees to prove age discrimination charges against their employers. The majority ruled that a worker cannot establish discrimination under the Age Discrimination in Employment Act by showing that age was one motivating factor for the employer's action, but instead must show that age was the decisive factor. The practical effect of the decision, said employment lawyers, is to eliminate so-called mixed-motives cases under the ADEA.

http://www.law.com/jsp/article.jsp?id=1202431571427

 

Workers' comp rates press upward [SD Union-Trib, 6/21/09]: Since California deregulated the workers' compensation market in 1993, the prices that employers have paid for their insurance have been on one long roller-coaster ride.

http://www3.signonsandiego.com/stories/2009/jun/21/lz1b21comp223433-workers-comp-rates-press-upward/

 

International Law, Citizenship and Immigration [TOPIC 40-42]

 

Joanne Mariner, “Global Views on Closing Guantanamo (the Right Way).” Writ, 6/8/09: Mariner points out that if the Obama Administration opts for a system of preventive detention -- that is, detention without charge or trial -- for some of the remaining Guantanamo detainees, then it will be out of step with many other governments around the world with respect to the protection of civil liberties.

http://writ.news.findlaw.com/mariner/20090608.html

 

John Dean, “Expert Advice On Dealing With A Prior Administration's Use of Torture.” Writ, 6/12/09: Dean draws from the work of the late Samuel P. Huntington -- a highly-regarded Harvard professor and former president of the American Political Science Association -- in commenting on how the Obama Administration should respond to the Bush Administration's past use of torture.

http://writ.news.findlaw.com/dean/20090612.html

 

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