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
(4th) 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 (4th)
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 (4th),
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
=====================================================
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
4th 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
4th 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
4th 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 (4th, 5th,
6th, and 8th amendments)
[See TOPICS 21-28 in the
4th 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.
1st Amendment (Speech, Religion, Press and
Assembly)
[See TOPICS 29-33 in the
4th 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 9th
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.
14th Amendment, Discrimination, Privacy, Working,
Citizenship & Immigration
[See TOPICS 34-41 in the
4th 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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