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?