The Constitution: A Pathway to Civic Engagement
November 19–20, 2010
Former Supreme Court Justice Sandra Day O’Connor has devoted much of her time since resigning from the bench to encourage the youth of America to study civics. Her recent public comments with respect to this topic echo the refrain articulated in contemporary surveys regarding the depth of American citizens’ knowledge of the Constitution and its meaning, and the role of the three branches of government. Citing polling engaged in by the Annenberg Foundation, Justice O’Connor reported the dismal results: only one third of Americans can name the three branches of government; of those numbers, many are unable to describe the role and functions of each branch. According to an article published in The Colonnade on March 8, 2010, only 103 million of 305 million Americans can cite the three branches, the judicial, legislative and executive branches of government. This lack of knowledge does not bode well for an informed and engaged citizenry. An understanding of the Constitution, of the manner in which the branches operate and interact, and of the crucial role citizens can play is essential to the maintenance of a vital democracy. It is the role of education to provide such learning in order that the country may thrive and that individuals fulfill their role as active participants in the political process and not as mute observers of the functions of government. This article endeavors to describe the manner in which such learning is integrated into law classes in order that students become more apprised of government functions, observe the fascinating intricacies of the balance of powers, and live more enriched and fulfilling lives. The specific tools that are employed in the classroom that will be discussed include: (1) United States Supreme Court decisions that would pose particular interest for college students ; (2) contemporary media coverage that addresses legal issues in the public school and university context; and (3) sources for online Constitutional teaching materials, including films, books, and foundation sites. Ultimately, the goal of this approach is to translate what many perceive as a dull, staid document into the vital and truly dynamic instrument the Constitution represents, and to promote a more informed citizenry that will both better understand the news and events in Washington and better be able contribute to political discourse and civic action.
a. United States Supreme Court Decisions. Two U.S. Supreme Court decisions that address Constitutional issues of significance to students are: Tinker v. Des Moines School District, 393 U.S. 503 (1969), and Papish v. Board of Curators of the University of Missouri, 410 U.S. 667 (1973). These two cases, which raise the issue of the scope of First Amendment freedoms within the school and university context, are of particular relevance to students in an era where issues related to the ability of public schools to regulate dress codes, hairstyles, and school publications abound, and where the extent of a university’s ability to control student presses and student behavior, both onsite and offsite in social networking sites, emerge among many other issues of Constitutional import. A third Supreme Court case, that of Ledbetter v. Goodyear Tire & Rubber Company, 550 U.S. 618 (2007) serves as a viable mechanism both to discuss issues related to gender discrimination and to exhibit with clarity the interaction of the three branches of the federal government with regard to Lilly Ledbetter’s sex discrimination claim. And all of the cases help translate the nebulous notion of a Constitution into an understandable and meaningful reality.
In the Tinker case, a brother and sister, John and Mary Beth Tinker, were sent home from their school for wearing black armbands in protestation of the Vietnam War. They urged that in so doing, the school had violated their First Amendment rights. In language that has been oft cited subsequently, the Court in ruling for the students, noted that “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” In so doing, the Court reinforced the premise that students possess First Amendment rights which cannot be limited in cases where they exhibit an expression of opinion that poses no threat of disorder or disturbance to the school, nor poses any interference with the rights of other students. In the Papish case the graduate student at the University of Missouri, Barbara Papish, was expelled from the institution for distributing an independent newspaper that contained two controversial items: a depiction of policemen raping the Statute of Liberty, which duplicated a political cartoon, and an article entitled “Motherf…. Acquitted.” Overruling the lower court which had uphold the dismissal, the Supreme Court held that “state colleges and universities are not enclaves immune from the sweep of the First Amendment,” that offensive ideas may not be banned from a state university campus, and that the student’s exercise of her freedom of speech did not pose a threat to the orderly operations of the university.
The third case, Ledbetter v. Goodyear Tire & Rubber, Co., provides a superb example of an instance of gender discrimination, and a concrete, instructive example of the manner in which the three branches of the government, as articulated in the Constitution, are inextricably intertwined. This case involved one Lilly Ledbetter who had been employed by Goodyear for nearly twenty years. In close proximity to the time of her retirement in 1998, she discovered that her male peers, similarly situated, had earned in excess of her salary; she had never noted the discrepancy as individual salaries were deemed private matters and not made public to employees. Ledbetter, upon acquiring knowledge of the disparities in pay, filed formal charges with the Equal Employment Opportunity Commission. She sued alleging pay discrimination under Title VII of the Civil Rights Act of 1964 and the Equal Pay Act of 1963, federal statutes which bar discrimination based on gender, race, and national origin, among others, in the workplace. On the trial level, the jury found for her, awarding both backpay and damages premised on Title VII violations. On appeal, Goodyear asserted that all pay discrimination claims made prior to the day in March 1998, on which Ledbetter filed a questionnaire with the Equal Employment Opportunity Commission, were time barred under the statute of limitations regarding discrimination claims. The Court of Appeals concurred, reversing the trial court. The Supreme Court did not reach the issue of whether, in fact, Ledbetter had demonstrated pay discrimination; the issue was one of the Court interpreting the 180 day timeline established by Congress for filing such claims. In essence, the Court concluded in a 5-4 decision that Ledbetter had to demonstrate discriminatory intent on the part of her employer during the 180 day “charging period” prior to her filing her claim with the EEOC. Thus, Ledbetter was barred from demonstrating that Goodyear had intentionally discriminated against her prior to the charging period, and that such past discrimination impacted her during the 180 day Title VII timeline for claims. In a vigorous dissent read from the bench, Justice Ginsburg noted the parsimonious construction the majority had afforded the Equal Pay statute, and urged Congress to clarify that the purpose of its statute was to provide broad remedial help to victims of discrimination. Congress responded to Ginsburg’s clarion call with the passage of the Lilly Ledbetter Fair Pay Act, which permits prior acts of pay discrimination beyond the 180 day statute of limitations to be incorporated into a claim of current discrimination. In January of 2009 Congress passed the statute and it served as the first piece of legislation President Obama signed. What is notable for students is that it conveys a sense of the purpose of the three branches as set forth by the founders in the Constitution, and presents for their analysis: federal statutes, Title VII and the Equal Pay Act as passed by Congress; the Lilly Ledbetter litigation as it traverses the three levels of the federal court system; a United States Supreme Court decision which construes the Congressional intent of the statute; and finally, the passage of the Lilly Ledbetter Act, with the attendant Presidential signature, which, in essence, overturned the decision of the Supreme Court.
b. Media Accounts of Constitutional Issues. There exist an abundance of news articles that can be located both in traditional hard copy and on the innumerable online news databases. The selection of articles I make each semester are timely, relevant to student interests, and illustrate some aspect of the Constitution at work, whether it be a lawsuit predicated on an asserted Constitutional violation such as a student claiming a search of his or her locker violated his rights of privacy; or an allegation that the courts were too activist and “overstepping their Constitutional boundaries” such as where the New Jersey courts ordered legislative funding for the poorer school districts in the state; or an assertion that a Congressional statute violated the scope of its constitutionally mandated powers, such as the recent claims asserted by numerous states that the mandates of the recently enacted health care legislation violate the both the power of Congress as set forth in the Commerce Clause and the rights of the states as encompassed in the Tenth Amendment to the Constitution.
Examples of articles utilized in my law classes conducted in the 2010 fall semester which raised constitutional issues of particular import to students include the following:
- “Lower Merion School District Settles Webcam Spying Lawsuits for $ 610,000” http://www.huffingtonpost.com, September 11, 2010. In this instance, the school district had supplied a laptop computer to each of its high school students, to be utilized during the school year. The computer could be removed from school premises and used in home, library or other settings. In an effort to deter loss or theft, the school, unbeknownst to the students, included Webcam technology with the computers which permitted the school to employ its remote tracking technology to ascertain the location of all laptops. It also enabled the school district to take thousands of webcam photographs of students in the students’ homes. One student’s attorney presented evidence that the student had been photographed hundreds of time in a two week period, including periods when he was asleep in his bedroom. The student and his family were apprised of the tracking when a vice principal, citing a photo of him captured from the webcam, told the student the photo revealed the student was engaged in improper behavior; the student asserted the alleged “drugs” he was seen taking were, in fact, candies. The fact that no one in the technology department, high school administration, or Board of Education raised the issue of the privacy expectations of the students, or foresaw the possibility of invasion of privacy claims, provides a telling example of the importance of knowledge of constitutional issues.
- “Private Moment Made Public, Then a Fatal Jump,” Lisa W. Foderaro, The New York Times, September 29, 2010. This article addresses the tragic results that occurred when two Rutgers University students used a webcam to stream a roommate’s intimate encounter on the Internet, accompanied by a Twitter message announcing that the roommate had requested sole possession of the dormitory room until midnight that evening. Three days subsequent to the broadcast, made without the knowledge or permission of the subject of the video, eighteen year old Tyler Clementi, the freshman violinist committed suicide by jumping from the George Washington Bridge. The two students who filmed the encounter confront dire consequences: they have left Rutgers, face criminal complaints of two counts of invasion of privacy, and potentially, civil lawsuits filed by the family of the deceased. The circumstances raise significant constitutional issues regarding privacy, including what were the reasonable expectations of the deceased roommate, and the manner in which the conduct of the two students abrogated that privacy.
- “10 years later, U.Penn free speech issues revisited,” Daily Pennsylvanian, by Yona Silverman, April 14, 2003. Although this article is of older vintage, its theme continues to resonate strongly today on college and university campuses, as what occurred on the campus of the University of Pennsylvania impacted the manner in which speech codes and harassment issues are addressed on university campuses. In this instance, Penn in 1993 had instituted a new harassment code which defined racial harassment as speech that “insults or demeans” an individual and that is intended to “inflict direct injury” on the recipient. A student in one of the high rise dorms endeavoring to study, after requesting that celebrating minority sorority sisters outside his room quiet down, shouted “Shut up, you water buffalo – if you want to party go to the zoo.” The student was charged with violation of the harassment code despite the fact that esteemed scholars on Penn’s campus evinced willingness to testify that “water buffalo” held no racial connotations, that it represented the English translation of a Hebrew term for a rude person, and that there was no basis to bring charges against the student. Such charges could lead to expulsion or the permanent placement of a harassment charge on the student’s transcript. Ultimately, the American Civil Liberties Union became involved; the matter ended when the female students dropped the charges, and the University was the recipient of sometimes scathing denouncements in the press. The incident raises excellent questions with respect to the exercise of First Amendment rights, including whether hate speech codes are violative of the First Amendment and whether political correctness restricts freedom of expression.
c. Online Database with Constitution Day Resources. A website that integrates well with the materials set forth above is the website entitled Sunnylands Classroom, located at http://www.sunnylandsclassroom.org. The Annenberg Foundation Trust at Sunnylands was established in 2001 by its founders, Ambassador Walter H. Annenberg and his wife Leonore Annenberg, to “advance public understanding of and appreciation for democracy.” The site provides a wealth of material titled “The Sunnylands Constitution Project” that can be utilized by faculty to celebrate Constitution Day, as mandated by the federal statute passed in 2004 which requires all publicly funded high schools, colleges and universities to provide educational programs regarding the Constitution on September 17th of each year, reflecting the day the Constitution was signed in 1787 at the U.S. Constitutional Convention. The resources available on the site are diverse and include, “classroom ready and digital resources” such as mature games, one of which is a game entitled “The First Amendment” that is premised on the Tinker v. Des Moines School District case noted above. As noted on the site, the game “launches students on a journey to the U.S. Supreme Court…[with] challenges that teach about the First Amendment, the Tinker case, legal concepts such as precedents, relevant vocabulary, and how the federal courts work.” Further, the site includes documentaries such as one addressing the Sixth Amendment right to a jury trial, and others providing “Conversations on the Constitution with Supreme Court Justices.” One of the videos specifically addresses the First Amendment issues raised in Tinker entitled “Justices Stephen G. Breyer, Sandra Day O’Connor and Anthony M. Kennedy: Freedom of Speech – Tinker v. Des Moines Independent School District, Morse v. Frederick.” The site also affords the professor the ability to download books in their entirety, such as Our Constitution by Donald A. Ritchie and JusticeLearning.org, or Our Rights by David J. Bodenhamer, or select individual chapters of particular interest. Chapter 6 of the latter work, for example, addresses the topic of “The Right to Freedom of Speech” which relates well to media articles noted above that raise this issue.
The Annenberg Classroom site provides an excellent video documentary that integrates well with the reading of the Ledbetter case noted above which is entitled, “A Call to Act: Ledbetter v. Goodyear Rubber and Tire Co.” The film powerfully illustrates the concept of civic engagement and the impact such an engaged citizen can have on the laws affecting all individuals in the country. The documentary is accompanied by other resources which include a full color timeline which covers the women’s rights movement from the 1700s to present day, and lesson plans and classroom discussion topics. Sunnylands Classroom Videos, which are available in Windows Media format, include documentaries on important Supreme Court cases, including an excellent documentary entitled “Yick Wo and the Equal Protection Clause – Yick Wo. v. Hopkins, that is narrated by Justice Anthony Kennedy in a style that is readily understandable to students and adaptable to classroom use.
Conclusion.The resources described above, whether utilized in a law class, infused into other subject matter areas, or employed as a basis for a Constitution Day recognition, can markedly impact the students’ knowledge of the role of the Constitution, the relevance it holds to much of what is reported in the media, and the impact the document has on the lives of its citizenry. Students report that they monitor and understand the news in greater depth; engage in discussions regarding constitutional issues that heretofore appeared daunting, are provided the impetus to further delve into issues of constitutional import, and are encouraged to more actively involve themselves in matters of civic engagement. Justice O’Connor rightfully bemoaned the fact that so few American citizens comprehend the Constitution or its role. Educators, in some measure, utilizing materials that are timely and relevant to college age interests, can help provide the basis for the engaged citizenry to which the Justice aspires.