March Madness...and Free Speech

It's time to be sure we are Marching toward the Exam!

Hard to believe it is March Madness already. Wow...time flies and May 4th will be here before we know it. We need to be sure to keep on schedule and get it all in. A tall order, especially for those of you who are semester only teachers. With most of us facing spring break in the next few weeks, the days are ticking off.

So dear readers, this week I will push on with the Bill of Rights and discuss the Free speech issue. We discussed incorporation a couple of weeks ago and last week the discussion of the Establishment and Free Exercise Clauses has really set much of the ground work for this discussion. Again sites I would direct you to are Oyez, Findlaw, and I find that most of the discussions on Wikipedia concerning Court cases are pretty good...at least to start. The students like the oral arguments that are easy to access on Oyez. My students have also found Cornell Law School's site helpful.

Again we don't want to bury the kids in too many cases, but here are some of the cases that we have to teach. I like to break the cases into pure speech and speech plus cases. This helps the kids sort them out a bit in their own minds.

Pure Speech Cases:

Schneck v. US... the "clear and present danger doctrine" (picture above from
Gitlow v. NY...incorporation of 1st Amendment free speech
Chaplinski v. New Hampshire...fighting words not protected
Bethal School District v. Fraser...student speech not totally protected

Are there others you would add to this list? I try to keep it pretty simple. The first two are critical for AP students, Chaplinski was once on the Exam, so I always teach it, and Fraser was a student case and the Exam likes to focus on those. For a full list of cases go to the Bill of Rights Institute site in the Teacher section and there is a very complete list of cases.

Speech Plus Cases:

• Tinker v. Des Moines...symbolic speech by students is OK if not disruptive to the school
  
• Johnson v. Texas...the flag burning case where the Court found flag burning was protected speech
• US v. O'Brien...Draft card burning is not protected
• Morse v. Frederick...the infamous Bong Hits for Jesus...probably not on AP yet, but will be some day...a set back on student right of speech but failed to reverse Tinker

Other Speech Cases:

• Miller v. California...sets out the ruling for what is obscene
• Buckley v. Veleo...reasonable limits on campaign contribution OK, but could not ban due to political speech issues

With the exception of Morse v. Frederick, all of the above cases have appeared on the AP Exam in either Free Response or Multiple Choice since I have been involved with AP. Don't expect the students to know all of the facts of each case, but knowing the general Court opinion should be a bottom line on these.

Next week I will continue with Free Press and Free Assembly cases. When I finish with my class discussions on cases, I will have the students make charts with the case name, Amendment, and 5-10 word Court finding. It will be a good study guide for them on May 3rd!

If you are off on Spring Break, have a great time. If not....labor on my friends...until then....

Teaching Freedom of Religion

Establishment and Prohibition

Last week I discussed the concept of incorporation, a very important concept for you students to get a handle on for the AP Exam. If you missed that discussion and are not sure what you need to know about the topic, you might want to scroll down and take a peak at what I had to say. This week I want to look at the 1st Amendment as it concerns the Establishment Clause and the Free Exercise Clause. Have your students look at the hippocampus. org readings and lectures on these topics. They are first class and will really help with student understanding.

I would also direct you to the Oyez site if you are unaware of it. Here you can locate hundreds of Court cases and find summaries, opinions, information on the Justices and how they voted, and you can even hear audio of the oral arguments on selected cases. Findlaw is another site that will give you the opinions and link you to related cases and cases in which your case is cited.

Establishment Clause

The Establishment Clause is not hard to teach. The students get very interested in the history and the cases. Many of the cases involve students and therefore easy for the kids to relate to. I first start the discussion on the Establishment Clause by referencing Jefferson's famous letter to the Danbury Baptist Church where he makes the famous "wall of separation" statement. This can lead to a discussion of original intention of the Founders including Enlightenment ideals and the state of religion in America in the 18th century.

I move on pretty quickly to the Supreme Court decisions that have truly shaped this concept. Below I will list the cases I focus on. You may have others you enjoy teaching, but I would caution you not to overwhelm kids with too many cases. While we can love cases and case history and remember them from years of teaching, the kids get the confused very quickly (as I have seen on AP exams as a reader).

• Lemon vs. Kurtzman (three part standard set by the Court)
• Abington School District v Schempp (family pictured above at the time of the case on Bible reading)
• Engle v. Vitale and Wallace v. Jaffee (school prayer and moment of silence)
• Allegheny v. ACLU (holiday displays by towns and cities)

I hold the students responsible for these cases, especially Lemon. The students absolutely must know the 3 standards the Court established in this case. I like to throw out a couple of other cases such as Lee v. Weisman (prayer at graduation) , Lynch vs. Donnelly (the so called plastic reindeer doctrine), and Sante Fe School Dist. v. Doe (prayer at athletic events). Again, I caution to not get the kids too bogged down in cases...it can prove to be a disaster!

Free Exercise

I start this topic with a discussion concerning the difference between belief and action. The Court in Ballard v. US said it wasn't in the business of defining religion or saying what was a religion and what wasn't, so pretty much, anytime someone has a sincere faith, the Court allows it. However, the Court has made it plain that while faith is allowed, actions can be limited. Here are some of the main cases I hit on during our discussion of Free Exercise which can be found in Oyez:

• Reynolds v US (the polygamy case from the 1800s)
• Church of Lukumi Babalu Aye v. Hialeah (animal sacrifice)
• Westside School District v. Mergens (equal access for Bible Clubs)
• Wisconsin v. Yoder (mandatory education and religion)
• West Virginia BOE v. Barnett (flag salute case)
• Employment Division v. Smith (the peyote case)
  

I like to discuss several other cases, but these are a pretty good group to focus on. Mergens is especially important as it was a case brought by a student. My students are always interested in the facts surrounding her case. Great discussion of some of the above cases are found on hippocampus.org. Be sure to have your students read the text, view the presentations, and check out the Explore boxes!!!

Next week I will share my thoughts on speech and assembly. Until then...

Selective Incorporation

What AP Students Should Know

This week I am launching a series of blog entries that will cover the Bill of Rights and civil liberties lasting for the next several weeks. During this series, I intend on covering the important cases that students should be familiar with and the aspects of the Bill of Rights that could be covered on the AP Exam. I will do this in the order of the rights as given starting with the two aspects of religion, moving to free speech and ending eventually with the 10th Amendment. This week, however, before getting to the Bill of Rights itself, I wish to discuss the concept of Selective Incorporation and what the test taking AP student should understand concering this topic. In my opinion, this is putting the horse before the wagon!

As I have found over the years, the concept of Selective Incorporation can be tricky to teach. For the average 17 year old, the legal concepts are abstract and the constitutional arguments don't necessarily make a whole ton of sense. In my early years of teaching APGOPO, I was not particularly successful in getting the concepts through to the kids as seen in exam results. I have experimented with several approaches, and the following seems to be the most successful.

I begin my lesson on Incorporation with a discussion on why the Bill of Rights was written in the first place. We discuss the Anti-federalist fear of powerful national government, the individual states' Bills of Rights included in their own constitutions, and the Enlightenment foundations the Framers were working under during this period in history. For most of the students, this is a review of material that they learned in AP US History with slight augmentation. My main point in this time of discussion is that the Bill of Rights was intended to protect the citizens from the excesses of the national government, not from their respective state governments that were solidly founded in civil liberty.

I then move the discussion to Barron v. Baltimore (1833), the Marshall Court case that answered the question, "Should states be required to follow the national Bill of Rights in dealing with their citizen's civil liberties?" Marshall in his landmark decision said no, that under the original intention of the Framers the Bill of Rights was intended on securing the blessings of liberty from the national government and not the individual states.

Continuing this evolution of the concept, we then discuss the 14th Amendment and the equal protection and due process clause. Again, for most of the students this is not new information, just a new way of viewing the 14th. I stress that the 14th was the means by which the Federal government was forcing compliance of the Southern states following the Civil War during Reconstruction. The Amendment would also be used to extend the power of the national government over the states in other areas outside of civil rights, at times running contrary to the 10th Amendment.

From this point, I move the discussion to Gitlow v. NY (1925). This case was the first incorporation case in which the Court applied the 1st Amendment's free speech clause directly to a state. We take a short look at the specifics of Gitlow, but I stress to the students the critical nature of the element of incorporation over other case details. We also discuss the Court's refusal to incorporate all of the Bill of Rights, but choice to look at each of the individual rights on a case by case basis...thus Selective Incorporation.

To solidify these concepts, I ask the students to include in their study notes the evolution of the concept with the following headings: Framer's intent, Barron v. Baltimore, 14th Amendment, and Gitlow v. NY. If they can remember this short list of headings, they will have begun to master this difficult to learn doctrine.

Because many of the cases that are necessary for the students to learn are incorporation cases, setting up your civil liberties and civil rights units with a solid understanding of selective incorporation will get the ball rolling in the right court (pun intended!). Next week, I will begin to look at the First Amendment with the Establishment Clause. Until then...

Court Cases to Better Understand the Court

A Short List of Must Learn Cases

I would like to complete my discussion of the Supreme Court. For the last couple of weeks I have discussed resources for teaching and learning about the court (Jan. 25 blog), teaching the ideas and concepts behind judicial activism and judicial construction (Feb. 1 blog), and last week we discussed the personalities in the Court and resources for studying these folks. If you missed these discussion and are interested, scroll down the page. This week I would like to complete this discussion by addressing a short list of cases that are "must learn" cases for the students.

Here is the caveat: while this is a relatively standard case list agreed on by most AP Government and Politics teachers, I sometimes wonder if we don't spend too much time with these cases. Mind you, I am not saying don't teach them, or don't expect the students to have at least a cursory understanding of their basic concepts. What I am saying is we need to balance the time we spend on case studies with the other aspects of the Court. I have been to numerous AP seminars where discussions on the Court turn strictly to case studies. For the last few years, I have noticed a diminishing number of cases quizzed on the exam and have had my students report that they feel they spent too much study time on cases that never appeared on the test. Especially the historic cases!

That said, I still think that to understand the Court is to understand to some extent the major cases. So here is my short list of cases that I am now concentrating on and asking the students to remember.

The Marshall Court

1. Marbury vs. Madison...the case that established judicial review over Congress as the right of the Court.
2. Martin vs. Hunter's Lessee...established judicial review over state legislatures.
3. Fletcher vs. Peck...property rights
4. Dartmouth College...sanctity of contracts
   
5. McCullough vs. Maryland...the so called Bank Case that established implied powers of the federal government
6. Gibbons vs. Ogden...the so called Steamboat Case that established federal power over interstate commerce
7. Barron vs. Baltimore...limits the Bill of Rights to the actions of the federal government and not the state and local governments

The Taney Court

1. Dred Scott vs Sandford...defined citizenship excluding African Americans, declared slavery as property rights.

The Fuller Court

1. Plessy vs. Ferguson...the separate but equal doctrine established allowing legal segregation

The White Court

1. Schneck vs. US...the clear and present danger doctrine via Oliver Wendell Holmes
   

The Stone Court...

1. Korematsu vs. US...allowed the internment of the Japaneses during WW II

The Warren Court

1. Brown vs. BOE of Topeka, Kansas...ended the Plessy rule of separate but equal, called for the forced integration of public schools
2. Engle vs Vitale...declares school prayer unconstitutional under the 1st Amendment
3. Gideon vs. Wainwright...the right of an attorney in all state court cases
4. Reynolds vs. Sims...one man one vote in reapportionment cases
5. Miranda vs. Arizona...rights must be read to defendants at the time of arrest...combines Gideon, Escobedo, and Miranda to come up with famous "right to remain silent...".

The Burger Court

1. Bakke vs Regents of UC...affirmative action allowed but quotas not permitted.
2. Roe vs. Wade...legalized abortion based on the 4th Amendment
3. Gregg vs. Georgia...death penelty allowed with the model of two trials...one for guilt and one for sentencing used.

Rehnquist Court

1. Bush vs. Gore...allowed recount of votes in Florida in effect deciding the 2000 election

You don't see your "favorite" cases to study? Go ahead and add it, but these twenty cases are a hand full for the students to remember, and we haven't even started on the incorporation and Bill of Rights cases that are also "must know" cases.

Case study is sort of a turkey shoot for both teachers and students. Many of us old timers remember the year that Wolf v. Colorado case crashed upon a Free Response question. We had all taught Mapp v. Ohio and Weaks vs US, but very few of us had attempted to explained the Wolf case to our classes. Why did ETS pick Wolf over Weaks or Mapp for pity sakes? Who'da thunk???? Not me!

Fortunately, the question gave several case options for students to pick from, and they were able to avoid a conversation on Wolf (which would have been short and not very pretty). Most often, on the Free Response questions the students do have options on cases to write on so the above list is almost sure to cover those options.

In the near future I will be discussing incorporation and the cases linked to incorporation. I will also be discussing Bill of Rights cases that are important to cover. These, for the most part, are in addition to the above list, so don't walk away from this blog and wonder how I could miss the obvious. The list above are cases I discuss when explaining the Court; how one Court can differ from another, and how the Court has changed historically. Here is my rule in all of this case study: Don't overwhelm the students with too many cases!!! I'll have more to come on this subject. Until then.....

The Current Court

What Students Should Know About Our Court

When I meet with other AP Government teachers and we discuss the Judiciary and the Court, the topic always seems to come up of how much of the current Court we should expect the students to know. To the best of my knowledge, the multiple choice portion of the Exam has never had a question about current Court members, their ideology, their stance on judicial activism versus judicial restraint, or their views on strict versus loose construction. These topics may trickle into the Free Response questions, but in the past students could get by without specific knowledge of the current Court.

Still, I am an ardent believer that we must teach this information and incorporate it into our classes. While I have been accused of "teaching to the Exam" (guilty...isn't that our job after all?), a great deal of what I cover in my curriculum is information that every intelligent participant in our government should have in their repertoire. Having a cursory understanding of the Justices who make critical public policy is vital to understanding the policy they make. So, I spend a bit of time looking at the life, career, and beliefs of these men and women.

I will have each of my students research one of the nine current Justices and report out to the class on what they find. I give them some places to start, however information is not hard to come by on the internet. For pure biographical information, I like the Oyez site. The information is dependable and straight forward. For case information, the Cornell site is a quick and reliable reference. And of course, there is Wikipedia. We all have our opinions on Wikipedia, I have shared mine in the past. As far as the Court goes, I have found no serious errors, a plethora of quick references, and so-so discussions on Court topics. Trust Wikipedia? No, but it has it's uses for high school students. Caveat emptor...to say the least. Finally, and probably most importantly, the Supreme Court's own site is the first place to send the inquiring students.

As far as books go, last week I mentioned "The Nine" by Toobin. Clarence Thomas' autobiography "My Grandfather's Son" was interesting and insightful, "Scalia Descents" was an eye opening look into the judicial understandings of Justice Scalia, and Jan Crawford Greenburg had some interesting chapters in "Supreme Conflict". For a quick project, these are probably a bit much for the kids to digest. For teachers, they are great summer reads. I also found an interesting interview transcript with John Paul Stevens, the 60 Minutes interview with Justice Scalia was very interesting, as was an NPR story on Justice Breyer. The PBS Supreme Court series does not cover the current court, but it does look at the Rehnquist Court, which gives us a great deal of insight on the Roberts Court. If you have time, it is worth viewing or having the students stream at home.

The problem is not a lack of information on the Court, there is almost too much stuff out there for the students to digest. I am sure they will find many more useful sites that you can add to a list for future use.

Here is the thing about doing a unit on the current Court. If you are lacking on time in your course, this could be an area to cut. A brief mention and the information picked up in the textbook will probably suffice test-wise. If you have the opportunity, however, I would take a few days, get into the Court personalities, and bring the modern Court alive for your students. It is a side trip well worth the effort. Next week I want to focus on a few of the important cases that are a must know for the AP students. Until then...