QUESTIONS BEFORE CLASS
In connection with each reading assignment, there are questions
which you should attempt to answer prior to class to help you
prepare for class discussion. You do not need to write out your
answers. These questions are listed by assignment number. They will
be posted several classes in advance.
Assignment 1 (pages 1-12) (Introduction, Tinker, Fraser)
Tinker v. Des Moines Independent Community School District No. 21
1. What did the principals of the Des Moines public schools do when
they learned that some students planned to wear black armbands to
school to protest the War in Vietnam?
2. There isn’t any doubt that wearing a t-shirt saying “I oppose the
Vietnam War” is speech, but do you think wearing a black armband
should be considered speech under the First Amendment?
3. Suppose a classmate of Mary Beth Tinker had a family member who
had died recently and the student wore a black armband to school as
a symbol of mourning for the relative. Could the student be
suspended for violating the armband policy if the student refused to
remove the armband like Christopher Eckhardt and John and Mary Beth
Tinker?
4. If you were advising Des Moines public school principals after
the Supreme Court decided Tinker, what would you tell them
they would have to prove in order to justify suspending a student
for wearing clothing with a political message?
Bethel School District No. 403 v. Fraser
5. Who was the audience for Matthew Fraser’s speech?
6. Did Fraser use any profanity in his nominating speech?
7. What case would Fraser rely on to argue that the school violated
his First Amendment rights?
8. Should Fraser have less First Amendment protection because he was
participating in a school-sponsored activity? Could he be
disciplined if he made the same remarks to some friends of his while
they were sitting in the school’s cafeteria eating lunch?
Assignment 2 (pages 12-27) (Kuhlmeier, Morse v. Frederick)
Hazelwood School District v. Kuhlmeier
1. Was writing for the student newspaper a curricular or
extracurricular activity?
2. Why did the principal insist that the article about divorce be
removed from the school newspaper?
3. Why did the principal insist that the article about pregnant high
school students be removed from the school newspaper?
4. Does the Supreme Court apply the Tinker standard in its
analysis in Kuhlmeier?
Morse v. Frederick
5. If you saw Frederick’s “Bong Hits 4 Jesus” banner, what would you
think it meant?
6. Frederick was 18 years old and legally an adult when he was
disciplined by his school, should he have had more free speech
rights based on his age?
7. Since Frederick was not inside the school building when he held
up his banner, why is his speech considered to be school speech?
8. Why doesn’t the Court apply the Tinker standard in Morse?
Assignment 3 (pages 27-41) (D.J.M. and Cuff)
D.J.M. v. Hannibal Public School District No. 60
1. What provision of the student code of conduct did D.J.M. violate
by his messages?
2. How was a true threat defined in Doe v. Pulaski Cnty. Special
Sch. Dist.?
3. What were D.J.M’s arguments that his messages were not true
threats?
4. In addition to its true threat analysis, what other legal
argument did the Eighth Circuit rely on in its decision?
Cuff v. Valley Central School District
5. B.C. created his drawing for an in-class assignment. Should his
speech have been considered to be school-sponsored speech governed
by Kuhlmeier?
6. Had B.C. been in trouble at school before the astronaut drawing?
7. When B.C. shared his drawing with other students in his science
class, did it cause disruption?
Assignment 4 (pages 41-51) (Hardwick, Broussard, and Guiles)
Hardwick ex rel. Hardwick v. Heyward
1. Was there disruption when Candice Hardwick wore her Confederate
flag shirt to school?
2. Is it relevant to the outcome of the case that Candice Hardwick
went to school in Latta, South Carolina rather than in New York
City?
Broussard ex rel. Lord v. School Board of City of Norfolk
3. Kimberly Broussard was 12 years old and in 7th grade when she
wore her Drugs Suck! t-shirt to school. Would the school have been
allowed to punish her if she was in high school?
4. How did the court determine the meaning of the phrase Drugs
Suck!? What kind of evidence did it consider?
5. Was Kimberly instructed not to wear her Drugs Suck! t-shirt
because of the message on the shirt or because of how the shirt
expressed the message?
Guiles ex rel. Guiles v. Marineau
6. Both Kimberly Broussard and Zachary Guiles were seventh-grade
students who got in trouble for wearing t-shirts with words on them
to school. Which of the 2 shirts do you think was the most
inappropriate to wear to school? Which was more likely to cause
disruption?
7. Why did the court in Guiles conclude that Fraser
was inapplicable to the case and it was governed by Tinker
instead?
Assignment 5 (pages 51-65) (Doninger and Layshock)
Doninger v. Niehoff
1. How was Avery Doninger disciplined for the way she communicated
with her classmates over problems with the scheduling of Jamfest?
2. Should Fraser apply to off-campus student speech like
Avery’s blog?
3. What if Avery wrote a blog post calling President Trump a
“doucebag” for his position on immigration. Could her school
discipline her for her speech?
Layshock ex rel. Layshock v. Hermitage School District
4. What are the connections between Hickory High School and the fake
profile Justin Layshock created on MySpace while at his
grandmother’s house and using her computer?
5. How did students learn about the fake profile of Principal Trosch
that Justin Layshock posted on MySpace?
6. Why does the court in Layshock conclude that Fraser
is not applicable to Justin Layshock’s speech?
Assignment 6 (pages 65-78) (Canady, Lowry, Frudden, and Pyle)
Canady v. Bossier Parish School District
1. Why does the court in Canady conclude that Tinker
is not applicable to a First Amendment challenge to the school
district’s mandatory school uniform policy?
2. What standard does the Canady court use to review the
school district’s uniform policy?
Lowry v. Watson Chapel School District
3. As the trial began in Lowry v. Watson Chapel School District,
what two stipulations did the school district make and do you agree
with the district’s legal strategy?
4. If the black armbands had been worn so that they covered up part
of the school uniform, would the court’s analysis have been
different?
5. How did the school district attempt to distinguish Tinker?
Frudden v. Pilling
6. Why did the school principal reject Mary Frudden's claim that her
children's AYSO uniforms fell within the written exemption from the
elementary school's mandatory school uniform policy?
7. In Frudden v. Pilling, how did the fact that the school
uniform included the written motto, “Tomorrow’s Leaders,” affect the
court’s analysis?
Pyle v. School Committee of South Hadley
8. If Massachusetts did not have a statute that protected student
speech, is it likely that a public high school would be allowed to
discipline students who wore t-shirts with the words "See Dick
Drink. See Dick Drive. See Dick Die. Don't be a Dick" and "Coed
Naked Band: Do It To the Rhythm" written on them consistent with the
quartet of Supreme Court student free speech cases?
Assignment 7 (pages 79-91) (Brown, Grutter, and Gratz)
Brown v. Board of Education
1. In Brown v. Board of Education, does the Supreme Court rely on
the history of the 14th Amendment to reach its decision?
2. Does the Court rely on the
history of public education at the time the 14th Amendment was
adopted to reach its decision?
3. The Court concludes that
“[s]eparate educational facilities are inherently unequal.” Why
does it reach this conclusion?
Grutter v. Bollinger
4. In Grutter v. Bollinger, the Court uses strict scrutiny
to analyze the Michigan Law School's affirmative action program.
What compelling interest does the Court recognize?
5. Why is the Law School's
admissions program narrowly tailored?
6. Would the Law School have been
permitted to set aside a specific number of seats in its entering
class for underrepresented minority students?
Gratz v. Bollinger
7. In Gratz v. Bollinger, how did the University of
Michigan take race into account in its undergraduate admissions
system?
8. Why does the Court conclude
that the University's undergraduate admissions system violates the
Fourteenth Amendment Equal Protection Clause?
Assignment 8 (pages 91-103) (Parents Involved in Community
Schools)
Parents Involved in Community Schools v.
Seattle School Dist. No. 1
1. In Parents Involved in Community Schools v.
Seattle School Dist. No. 1,
what is the goal of the pupil assignment plans in the Seattle and
Jefferson County school systems?
2. How do the Seattle and
Jefferson County school systems identify racially imbalanced
schools?
3. Jefferson County operated a
racially segregated public school system for many years. Does that
fact make any constitutional difference in the county’s ability to
remedy racial imbalance in its public school system?
4. What standard does the Supreme
Court apply to decide if the plans are constitutional?
5. Which is the most important
opinion of the five opinions in Parents Involved?
6. In what ways does Justice Kennedy agree with Chief Justice
Robert's opinion?
7. In what ways does Justice Kennedy disagree with Chief Justice
Robert's opinion?
Assignment 9 (pages 103-118) (Gender Discrimination: United
States v. Virginia, A.N.A., and Doe)
United
States v. Virginia
1. In United States v. Virginia, what is Justice
Ginsburg’s explanation for why gender is not a proscribed
classification like race?
2. What standard of review does the Court apply to gender
discrimination?
3. What justifications does Virginia offer for its decision to
exclude women from VMI?
4. Does the opinion concede that VMI will have to completely
change its system of education if it is required to admit women?
5. Why is the creation of the Virginia Women’s Institute for
Leadership insufficient to cure the equal protection defect
identified by the Court in United States v. Virginia?
6. In his dissenting opinion, what standard would Justice Scalia
prefer the Court apply to gender discrimination?
A.N.A.
v. Breckinridge Board of Education
7. In A.N.A. v. Breckinridge Board of Education, the
court does not apply the reasoning of Brown v. Board of Education,
that intentional racial segregation in public schools is
inherently unequal, to intentional separation in education based
on gender. Why does the court treat race and gender differently?
Doe
v. Wood County Board of Education
8. In Doe v. Wood County Board of Education, what
system did Van Devender Middle School use to sign students up for
single sex classes?
Assignment 10 (pages 118-132) (Undocumented Children, Bona
Fide Residents, and Classifications Based on Wealth: Plyler,
Martinez, Rodriguez, and Kadrmas)
Plyler v. Doe
1. In Plyler v. Doe, does the Supreme Court conclude that
undocumented immigrant children are a suspect class like race or
at least quasi-suspect like gender?
2. Does the Supreme Court conclude that the right to a free public
education is a fundamental right under the Equal Protection
Clause?
3. What standard does the Court apply to evaluate the
constitutionality of the Texas laws at issue?
4. What three state interests does Texas assert to justify its
refusal to provide a free public school education to undocumented
immigrant children?
Martinez v. Bynum
5. In Martinez v. Bynum, what class is discriminated against by
the State of Texas?
6. What standard does the Court apply?
Kadrmas v. Dickinson Public Schools
7. In Kadrmas v. Dickinson Public Schools, how does the Supreme
Court distinguish Plyler v. Doe?
Assignment 11 (pages 133-148) (Introduction, T.L.O.,
and Redding)
T.L.O. v. New Jersey
1. What is the basis of the argument that the Fourth
Amendment should not apply to searches of students by public
school personnel?
2. If the Fourth
Amendment applied fully to public school searches of student
belongings by school employees based on individualized
suspicion, what would the school have to show to justify a
search?
3. In T.L.O. v. New Jersey, what standard does
the Supreme Court apply to school searches when a particular
student is suspected of possessing something that school rules
prohibit?
4. In T.L.O., does the
majority’s approach take into account the seriousness of the
rule the student is suspected of violating?
Safford Unified School District v. Redding
5. What is the basis for the
suspicion that Savana Redding sold, used or gave away prescription
and/or over-the-counter pills at school?
6. If Savana Redding had not
given the Assistant Principal permission to search her backpack,
would his search of the backpack have violated the Fourth
Amendment?
7. After concluding that the
Assistant Principal violated the Fourth Amendment, why does the
Supreme Court conclude that he is not liable for damages?
8. What is Justice Thomas’s view of the extent to which the Fourth
Amendment applies to searches in the public schools by school
personnel?
Assignment 12 (pages 148-162) (Acton, Earls, and Additional
Situations)
Vernonia
School District 47J v. Acton
1. In Vernonia
School District 47J v. Acton, what was the school
district doing that was challenged as a violation of the
Fourth Amendment?
2. Did the Supreme Court apply the test from T.L.O. v. New
Jersey?
3. What are some examples of suspicionless searches that the
Supreme Court has upheld in the past?
4. Does the Court conclude that public schools exercise the
same authority over their students as parent do over their
children?
5. How does the Court assess the character of the intrusion
involved in the testing?
Board of Education of
Independent School District No. 92 of Pottawatomie County v.
Earls
6. In Board of Education of Independent School District No. 92
of Pottawatomie County v. Earls, which students were required
to submit to drug testing?
7. To justify the drug testing, did the Court in Earls
require the school district to have a drug problem as serious as the
one that existed in Vernonia School District 47J?
8. Why does the Supreme Court conclude that members of the Academic
Team have the same limited expectation of privacy as student
athletes?
Assignment 13 (pages 163-178) (Introduction, Released Time
Religious Education: McCollum and Zorach, School Prayer, and Bible
Reading: Engel and Schempp)
Illinois
ex rel. McCollum v. Board of Education
1.
In Illinois ex rel. McCollum v. Board of
Education,
where do the religion classes take place?
2. How do students enroll in
the religion classes?
3. How does a school know if
students who sign up actually attend the religion classes?
4. What constitutional defects
does the Supreme Court identify which cause the Court to
invalidate the Illinois program as a violation of the
Establishment Clause?
Zorach v. Clauson
5. In Zorach v. Clauson, what are the differences
between the New York City program in Zorach and the Illinois
program in McCollum?
Engel v. Vitale
6. In Engel v. Vitale, who wrote the prayer?
7.
When
and where was the prayer recited?
School District of Abington Township v. Schempp
8.
In School District of Abington Township v.
Schempp,
what two criteria would the government have to satisfy in order
to defeat the Establishment Clause challenge to daily Bible
reading in the public schools?
Assignment
14 (pages 178-191) (The Ten
Commandments: Stone and Moment of Silence: Wallace)
Stone v. Graham
1. In Stone
v. Graham, what test did the Court apply to
evaluate the constitutionality of the posting of the Ten
Commandments?
2. What evidence did the state
present to support its argument that it had a secular purpose
for the posting of the Ten Commandments?
3. Why did the Court reject the
state’s argument?
4. In what ways can the Ten
Commandments be included in the public school curriculum?
Wallace v. Jaffree
5. In Wallace v. Jaffree, what is the difference
between § 16-1-20 which authorized a 1-minute period of silence
in all public schools and § 16-1-20.1?
6. What was Senator Donald
Holmes’s reason for sponsoring § 16-1-20.1?
7. In Justice O’Connor’s
opinion concurring in the judgment, in what ways does she want
to alter the Lemon test?
8. Does Justice O’Connor
conclude that other moment of silence laws are also likely to be
struck down as violations of the Establishment Clause?
Assignment 15
(pages 191-212) (School Prayer: Weisman and Doe)
Lee
v. Weisman
1.
In Lee v. Weisman, who invited Rabbi Gutterman to lead
those in attendance at graduation in prayer?
2. Did the rabbi receive any guidance from the school principal
about how to compose the invocation and benediction he recited
at graduation?
3. In resolving the dispute, does the Supreme Court use the Lemon
test?
4. Since attendance at graduation is voluntary, does the Court
conclude that there is no coercion to attend graduation and
participate in the prayers?
Santa Fe Independent School District v. Doe
5. In Santa
Fe Independent School District v. Doe, how is it
decided whether there will be a prayer before home
football games and who will deliver the prayer?
6. In what way
did the school district’s football prayer policy change
between August, 1995 and October, 1995?
7. How does the
Supreme Court respond to the school district’s argument
that the football prayers are the private speech of
students and not government speech and, therefore, do not
violate the Establishment Clause?
8. Does the
Court apply the Lemon test to
determine whether the school district’s policy violates
the Establishment Clause?
Assignment
16 (pages
212-226) (Pledge of Allegiance: Newdow and Public School Curriculum:
Epperson and Edwards)
Elk Grove Unified
School District v. Newdow
1. In Elk Grove Unified School District
v. Newdow, what does Justice Stevens’s opinion for the Court
decide?
2. In Chief Justice
Rehnquist’s view why are the addition of the words “under God”
to the Pledge of Allegiance constitutional?
3. In Justice
O’Connor’s view why are the addition of the words “under God”
to the Pledge of Allegiance constitutional?
Epperson v. Arkansas
4. In Epperson v. Arkansas, what
dilemma did Susan Epperson face that caused her to file a
lawsuit to challenge the Arkansas law?
5. In reviewing the constitutionality of the Arkansas law,
what test does the Supreme Court apply?
6. Why does the Court conclude that the Arkansas law fails
the test?
Edwards v. Aguillard
7. In Edwards v. Aguillard, is there a stated
secular purpose to justify the enactment of the Louisiana
law?
8. Why does the Supreme Court strike down the law as
a violation of the Establishment Clause?
Assignment 17 (pages 227- 246) (Equal Access Act: Mergens and
Use of School Facilities: Lamb’s Chapel and Good News Club)
Board of Education of the Westside
Community Schools v. Mergens
1. Under the Equal
Access Act, what must a public secondary school do to create a
limited open forum?
2. Why does the Supreme Court conclude that the Equal Access
Act does not have the primary effect of advancing religion?
Lamb's Chapel v. Center Moriches School District
3. In Lamb’s Chapel, the school district relies on the
Establishment Clause to defend itself against the argument
that it violated the Free Speech Clause by prohibiting a
church from using school facilities to display a film about
family and child-rearing issues from a Christian perspective.
Why does the Supreme Court reject the school district’s
Establishment Clause defense?
Good News Club v. Milford Central School
4. Did the Milford Central School create a limited public
forum by opening its facilities for use by district residents?
5. What test does the Supreme Court apply to determine if the
exclusion of the Good News Club violates the Free Speech
Clause?
6. Why does the Court conclude that the exclusion of the Good
News Club constitutes viewpoint discrimination rather than
subject matter discrimination?
7. How does Milford attempt to distinguish Widmar v.
Vincent and Lamb’s Chapel v. Center Moriches School
District?
Assignment 18 (pages 247-259) (Free Exercise Clause
Introduction, Compulsory School Attendance: Yoder, and Clothing:
Griffith)
Wisconsin v.
Yoder
1. In Wisconsin
v. Yoder, how much of a burden does Wisconsin law impose
on Amish religious beliefs?
2. What evidence does the Supreme Court rely on to determine
the respondents’ behavior is based on religion and not a
lifestyle choice?
3. Why does the Amish religion object to school past the
eighth grade, but not object to school through the eighth
grade?
4. What standard does the Court require Wisconsin to satisfy
to defeat the free exercise claim once the Court concludes the
respondents have satisfied the preliminary hurdles by
demonstrating that Wisconsin’s compulsory education law
imposes a significant burden on their sincerely-held religious
beliefs?
5. What two state interests does Wisconsin assert to justify
its system of compulsory education?
Griffith v.
Caney Valley Public Schools
6. In Griffith v. Caney Valley Public Schools, why
does Caney Valley High School prohibit students from
decorating their graduation caps?
7. Why does the district court conclude that the school’s
policy prohibiting decorations on graduation caps is a neutral
policy of general applicability?
8. Why does the district court reject the argument that it
should apply heightened scrutiny to the school's policy based
on a hybrid-rights theory?
Assignment
19 (pages 259- 276) (Hairstyle: A.A. ex rel. Betenbaugh and
Vaccination Requirements: Workman and Phillips)
A.A.
ex rel. Betenbaugh v. Needville Independent School
District
1. In A.A. ex rel.
Betenbaugh v. Needville Independent School District,
what arguments does the school district make to try to
convince the court that Plaintiff Arocha’s decision to wear
his hair long is not based on a religious belief?
2. Did the school district’s decision to create an exemption
policy specifically for A.A. help its legal position?
3. What arguments do the plaintiffs make to convince the
court that their free exercise claim should be analyzed
using strict scrutiny?
4. What constitutional rights do the plaintiffs rely on to
support their hybrid rights claim under the Free Exercise
Clause?
5. What does the school district argue to show that it can
satisfy the strict scrutiny test and why does the court
reject its arguments?
Workman v. Mingo County Board of Education
6. In Workman v. Mingo County Board of
Education, what is the state’s compelling reason for
mandating that children be vaccinated in order to attend
public schools?
Phillips
v. City of New York
7. In Phillips v. City of
New York, why did the Magistrate Judge conclude that
Dina Check was not entitled to a religious exemption from
the mandatory vaccination requirement?
8. In light of the fact that Plaintiffs Phillips and
Mendoza-Vaca had valid religious exemptions from New York’s
mandatory vaccination requirement, why was the state
permitted to exclude their children from school during the
outbreak of a vaccine-preventable disease?
Assignment 20 (pages 276-292 (Curriculum: Parker and Combs)
Parker v. Hurley
1. In Parker v. Hurley, what kind of books do the
Parkers and the Wirthlins raise objections to in their
lawsuit?
2. Do the plaintiffs argue these books should be excluded from
the elementary school curriculum?
3. What constitutional claims do the plaintiffs raise?
4. Does the court recognize the hybrid rights doctrine?
Combs v.
Homer-Center School District
5. In Combs v. Homer-Center
School District, what forms of state supervision of home
schooling do the plaintiffs argue violate their constitutional
rights?
6. What argument do the plaintiffs make that Act 169 is not a
law of general applicability and why does the court reject
that argument?
7. How does the court distinguish the case before it from Wisconsin
v. Yoder?
8. In both Parker and Combs, the plaintiffs
sought to have more control over the education of their
children and unsuccessfully raised claims under the Free
Exercise Clause and the Due Process Clause. What kind of facts
are required for such claims to succeed?
Assignment 21 (pages
293-306) (Teacher Free Speech Rights Introduction, Weintraub,
Mayer, and Spanierman)
Weintraub v. Board of Education of the City
of New York
1. In Weintraub v. Board of Education of
the City of New York, what were the three categories
of speech that Mr. Weintraub argued resulted in his
termination?
2. Of the three, which is the only one that the court
concludes is not official duty speech under Garcetti?
3. Why do the district court and the court of appeals
conclude that his filing of a formal grievance against his
assistant principal is official duty speech not protected by
the First Amendment?
Mayer
v. Monroe County Community School Corporation
4. In Mayer v. Monroe County Community School
Corporation, what argument does Deborah Mayer make to
try to avoid the “official duty” characterization of Garcetti
that would bar her First Amendment claim?
Spanierman
v. Hughes
5. In Spanierman v. Hughes, what did Mr. Spanierman
do after he was first told by the guidance counselor that
some of the content on his MySpace page was inappropriate?
6. Why does Mr. Spanierman say he was dismissed and why do
the defendants say they dismissed him?
7. In his First Amendment retaliation claim, what three
things does Mr. Spanierman have to prove?
8. Did he demonstrate all three by a preponderance of the
evidence as required to satisfy his burden of proof?
Assignment 22 (pages
307-319) (Introduction, Goss v. Lopez, and C.Y. v. Lakeview Public
Schools)
Goss v. Lopez
1. In Goss v. Lopez, was there a pre-suspension
hearing or any other procedure prior to the students being
suspended?
2. According to the Supreme Court, were the students
deprived of life, liberty or property?
3. What kind of procedural due process does the Supreme
Court conclude is required at a minimum prior to a public
school deciding to suspend a student?
4. Are there ever circumstances when a student can be
removed from school without any notice or hearing?
5. Does the length of the suspension matter in terms of the
amount of process that is required?
C.Y.
v. Lakeview Public Schools
6. In C.Y. v. Lakeview Public Schools, why might it matter
if the suspension occurred on February 21st, as C.Y. argued,
rather than February 22nd, as the defendants argued?
7. In deciding what kind of due process is required prior to the
expulsion of a student, what three factors does the court
consider?
8. Why does the court conclude that there was no procedural due
process violation in failing to show C.Y. the witness statements
and the report prepared by Assistant Vice-Principal Huber?
Assignment 23 (pages 319-335) (Introduction
to Corporal Punishment, Ingraham v. Wright, Garcia v. Miera, and
Payne v. Peninsula School District)
Ingraham v. Wright
1. At common law, how much force could a teacher or school
administrator use to punish a child?
2. Why does the Supreme Court reject Ingraham’s Eighth
Amendment claim?
3. Do students have a substantive due process liberty
interest to be free of corporal punishment?
4. Are public school students entitled to notice and a
hearing prior to the imposition of physical punishment?
Garcia v. Miera
5. In Garcia v. Miera, what three categories of
corporal punishment does the court identify?
6. According to the court, under what circumstances can
physical punishment of a student by a teacher or school
administrator be a violation of a student’s substantive
due process rights actionable under 42 U.S.C. § 1983?
Payne v. Peninsula School District
7. In Payne v. Peninsula School District, what
standard does the court apply to determine if Jody Coy's
use of the safe room to discipline D.P. violated his
substantive due process rights?