The Missouri Bar Constitution Day Program A Joint Project of

The Missouri Bar Constitution Day Program A Joint Project of The Missouri Bar and HEC-TV Live September 17, 2008 STUDY GUIDE Introduction The Missouri Bar and HEC-TV are proud to host The Missouri Bar Constitution Day Program 2008. The 2008 program will focus on two, often interrelated themes—the right of privacy and freedom of expression. Throughout the summer, the HEC-TV production staff interviewed a variety of high school students about various constitutional issues. Constitution Day participants will have the opportunity to hear some of these students’ views, listen to a panel of experts comment on these views, and submit their own questions and comments to the panel. Objectives of the Constitution Day Program 1. To introduce and explore with students the constitutional concept of the right to privacy. 2. To introduce and explore with students the constitutional concept of the freedom of expression. 3. To demonstrate the relevance of the Constitution and Bill of Rights to issues students currently encounter. Purpose of the study guide This study guide is intended as resource for the classroom teacher to prepare students for Constitution day broadcasts. The study guide has background materials, classroom activities, enrichment suggestions and links to outstanding Internet sites. The making of the Constitution and the Bill of Rights There are three excellent websites for exploring the philosophical and historical foundations of both the Constitution and the Bill of Rights: • The National Archives site at http://www.archives.gov • A newly designed National Archives site on all of the founding documents at http://www.archives.gov/exhibits/charters/charters.html • The National Constitution Center at http://www.archives.gov/exhibits/charters/charters.html • The Constitutional Sources Project at http://consource.org WARNING: Visiting these sites may cause the visitor to lose all track of time! They truly are loaded with interesting information and engaging activities. 1 Exploring the Right of Privacy and Freedom of Expression The first thing teachers may want to challenge their students to do is to find the words right of privacy and freedom of expression in the Constitution or in the Bill of Rights or in any of the constitutional amendments. If students respond that there is no mention of the right of privacy in the Constitution, they will get a standing ovation from Supreme Court Justice Anton Scalia. Whether such a right exists is a modern day constitutional controversy. On the other hand, there is not much argument that the freedoms of speech, of press, of the right to assemble and the right to petition the government collectively may be referred to as the freedom of expression. Some constitutional scholars also include freedom of religion as part of the freedom of expression. What is the right of privacy and where did it originate? The first time the United States Supreme Court specifically found a “right of privacy” was in the case of Griswold v. Connecticut, 381 U.S. 479 (1965). However, in the Griswold opinion, Justice William O. Douglas opined that the right of privacy is older than our constitution. In that case, the Court struck down a Connecticut law making it a crime to provide contraceptives to married couples: We deal with a right of privacy older than the Bill of Rights -- older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions. Justice Douglas also went on to say that the right to privacy is implied in our Bill of Rights and wrote this very famous language in the Griswold cases: The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. ..Various guarantees create zones of privacy. The “foregoing cases” Justice Douglas refers to deal with various First, Fourth, Fifth and Fourteenth Amendment protections, including the right of parents to make educational choices for their children, the right for people to be free from unreasonable searches and seizures, the right to associate with various groups and the right not to testify against oneself. It is worthwhile to read this entire case for the Justice William Douglas’ analysis as to where the right of privacy may be found in the United States Constitution. Go to: http://www.law.cornell.edu/supct/html/historics/USSC_CR_0381_0479_ZO.htm There is an excellent lesson plan on Griswold at http://www.billofrightsinstitute.org/Newsletters/lscc/2005-2006/griswold.pdf . 2 After Griswold, the right of privacy is further developed in a number of cases, most notably the cases of Roe v. Wade (abortion), and Cruzan v. Missouri (right to make certain medical decisions). There are excellent discussions on these topics at http://topics.law.cornell.edu/wex/personal_Autonomy and http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/rightofprivacy.html. For an excellent lesson plan on Roe v. Wade, go to http://www.billofrightsinstitute.org/Newsletters/LSCC/2006-2007/roevwade.pdf . What privacy issues do the students address in the Constitution Day interviews? The students in the Constitution Day clips talk about whether school officials can search their lockers and about whether they can be randomly tested for drugs at school and as a condition of attending certain events like prom. The significant cases for students to consider are as follows: • New Jersey v. T.L.O—Under the 4th Amendment, for a search to be reasonable, the government official doing the search must have probable cause to believe that a law has been broken. In this case, the Court held that, in a school, the probable cause need only be a belief that a school rule may have been violated. For an excellent lesson plan, go to http://www.landmarkcases.org. Vernonia v.Acton—The school district’s concerns about drug usage among its student athletes was sufficient probable cause for mandatory random drug testing to be considered a reasonable search. The Court was careful to point out that the school district had identified a significant drug problem among the athletes and that the results of the mandatory drug testing would not be turned over to law enforcement officials. The Court expanded its holding in Vernonia seven years later in the case of Board of Education of Independent School District No. 92 of Pottawatomie City v. Earls, 536 U.S. 822 (2002). In that case, the school district policy for mandatory drug testing included everyone in extracurricular activities. (The students who challenged the policy were in band and on the academic team.) Unlike the Vernonia school district, the Pottawatomie School District had not articulated that there was a drug problem in the school. Nevertheless, the Court held that the school’s drug testing policy did not violate the 4th Amendment, once again citing the school’s need to address its general concerns about teen drug usage and once again pointing out that the drug test results would not be shared with law enforcement officials. For an excellent lesson plan on this case, go to http://www.billofrightsinstitute.org/Newsletters/lscc/20072008/pottawatomievearls.pdf . • • Have students consider: Based on these cases, when do you think school officials can search lockers or perform random drug tests? Do they violate a student’s right of privacy? 3 What freedom of expression issues do the students address in the Constitution Day interviews? 1. The students in the Constitution Day clips talk about how far school officials can go in regulating Internet speech that may be regarded as bullying. This is an untested area of the law but one very much at the forefront of the education in a digital age. In response to a situation where an adult allegedly harassed or bullied a young person to the point she committed suicide, Governor Matt Blunt formed a task force to study what could be done to punish people who use the Internet to bully other people. The task force recommended that Missouri’s current definitions of the crimes of harassment and stalking be expanded to include Internet communications. This is some of what the new legislation that went into effect on August 28, 2008 contains: • Requires school boards to have a written policy requiring school administrators to report crimes of harassment and stalking committed on school property to law enforcement. • Previously, the crime of harassment included communications meant to frighten or disturb another person. With the new law, communications conducted to knowingly frighten, intimidate, or cause emotional distress to another person are included. Harassment includes communications by any means. • This act expands the crime of stalking to include any course of conduct with two or more acts over a period of time that is communicated by any means. A "credible threat" includes those made with the intent to cause the person who is the target to reasonably fear for his or her family's safety. The courts have granted schools a lot of latitude when it comes to regulating speech: • Hazelwood v. Kuhlmeier—School officials have the authority to edit a school newspaper. For an excellent lesson plan, go to http://www.landmarkcases.org. • Bethel v. Fraser—School officials may suspend a student for using inappropriate speech at a school assembly. For an excellent lesson plan, go to http://www.billofrightsinstitute.org/Newsletters/LSCC/2006-2007/bethelfraser.pdf . Morse v. Frederick—School officials may suspend a student for displaying an inappropriate sign at a public parade where students represented the school. For an excellent lesson plan, go to http://www.billofrightsinstitute.org/Newsletters/LSCC/2006-2007/bethelfraser.pdf • Have students consider: Do you think that the new Missouri law makes it clear school officials can regulate Internet communications that are not made at school? How is the speech in the court cases different from Internet communications? After listening to the Constitution Day program, which students do you agree with about what school officials can do about Internet bullying? The students in the Constitution Day clips talk about whether burning a flag to protest a government action is protected under the freedom of expression. The Court ruled it was in the 1989 case of Texas v. Johnson. (For an excellent lesson plan on this case, go to topic http://www.landmarkcases.org). However, several times the House of Representatives in Congress has proposed a ban on flag burning amendment to the Constitution but the Senate 4 has never given its approval. The latest proposed amendment to the Constitution reads as follows: The Congress shall have power to prohibit the physical desecration of the flag of the United States. Have students consider: Would you vote for such an amendment? Why or why not? After listening to the Constitution Day program, which students do you agree with? Why? 5 Grade Level Expectations The Missouri Bar Constitution Day provides the content and teaching methodology, based upon inquiry instruction necessary to meet the Missouri Department of Elementary and Secondary Education’s Show Me Standards, Course Level, and Grade Level Expectations (GLE) that complement the standards for several areas of social studies. Note: Only the goals, CLEs, and GLEs that are relevant to Constitution Day activities are included in this document. These standards are both from the Government and U.S. History standards. Note: Lettered outcome objectives are not sequential because they reference DESE documents. Grades 7-8 Principles of Constitutional Democracy 1. Knowledge of the principles expressed in documents shaping constitutional democracy in the United States. A. (1) Principles expressed in documents shaping constitutional democracy in the United States. Principles and Process of Governance Systems 3. Knowledge of principles and processes of governance systems C. (2) Processes of governmental systems. G. (2) Effects of laws and events on relationships. I. (3) Changing ideas, concepts and traditions. Grades 9-12 Principles of Constitutional Democracy 2. Knowledge of the principles expressed in documents shaping constitutional democracy in the United States. A (1) • Principles of Constitutional Democracy in the United States. • Assess the changing roles of government. • Understanding the relevance and connections of constitutional principles. B (3) Roles of citizens and governments in carrying out constitutional principles. 6 Principles and processes of governance systems 3. Knowledge of principles and processes of governance systems A. (1) Principles and purposes of government. 7