Missouri Bar Citizenship Education
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 issues related to the right of privacy and freedom of expression.  Constitution Day participants will have the opportunity to hear some of these students’ views, to listen to a panel of experts comment on these views, and to submit their own questions and comments to the panel. 

Objectives of the Constitution Day Program
1. To introduce and explore with students the right to privacy.
2. To introduce and explore with students freedom of expression.
3. To explore how the right of privacy and freedom of expression are relevant to many current, controversial issues.
4. To demonstrate the relevance of the Constitution and Bill of Rights in students everyday lives.

Purpose of the study guide

This study guide is intended as resource for classroom teachers to prepare students for the Constitution Day broadcasts and to provide follow-up reflection questions.  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

We recommend several excellent websites for exploring the philosophical and historical foundations and for learning about the Constitution and the Bill of Rights, and for information about the Constitutional Convention of 1787 and the constitutional ratification process:
• 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 are loaded with interesting information and engaging activities.

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 of 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.

1. 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 1965 case of Griswold v. Connecticut, 381 U.S. 479. (In that case, the Court struck down a Connecticut law making it a crime to provide contraceptives to married couples.)  However, in the Griswold opinion, Justice William O. Douglas opined that the right of privacy is older than our constitution:
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 what has become often quoted language in court opinions and constitutional textbooks:
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.  These protections include the right of parents to make educational and medical 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 reading this entire case for Justice William Douglas’ analysis as to where the right of privacy may be found in the United States Constitution.


Classroom resources for the Griswold and related cases:

• For Supreme Court cases, we recommend http://supct.law.cornell.edu/supct/ .  Griswold is located at:
        http://supct.law.cornell.edu/supct/html/historics/USSC_CR_0381_0479_ZS.html

• There is an excellent lesson plan on Griswold at http://www.billofrightsinstitute.org/Newsletters/lscc/2005-2006/griswold.pdf .

• After Griswold, the right of privacy was further developed in a number of cases, most notably the cases of Roe v. Wade (abortion), Cruzan v. Missouri (right to make certain medical decisions) and the Lawrence v. Texas (striking down laws that make consensual acts of sodomy between two adults a crime).  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 .

2. What privacy issues do the students address in the Constitution Day interviews?

The students in the Constitution Day interviews talk about whether school officials can search their lockers and about whether they can be randomly tested for drugs at school as a condition for attending certain events like prom. 

Classroom resources for the Griswold and related cases:

• 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 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. In this 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/2007-2008/pottawatomievearls.pdf .


Reflection questions for the students after the Constitution Day broadcast:
• Based on the cases you studied prior to the broadcast and on the information given in the broadcast, when do you think school officials can search lockers or perform random drug tests without a search warrant? 
• Do these searches violate a student’s right of privacy?
• What reasons do the students in the interview clips give for why school officials should be allowed to conduct these kinds of searches?  Do you agree with them?

3. What freedom of expression issues do the students address in the Constitution Day interviews?

Issue #1—Internet Speech
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 or defamatory.  This is an untested area of the law but one very much at the forefront of education in a digital age. 

In response to a situation in Missouri 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.

For a detailed summary of the bill, click here. 




Issue #2—Protests at a Political Rally at a School

The students in the Constitution Day clips talk about how far school officials can go in disciplining students at a political rally.   The students are asked to respond to a hypothetical situation where Senator Obama comes to their school to give a speech and some of the students display signs with racist slurs on them.

Issue #3—Flag Burning

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. However, several times the House of Representatives in Congress has proposed a ban on flag burning amendment to the Constitution but the Senate 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. 


Classroom resources for Internet speech, political rally protests and flag burning:

While Internet speech has not been addressed by the courts, there are other cases that indicate how much latitude schools have 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 www.landmarkcases.org .

• Bethel v. Fraser—School officials can 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 can 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

• Hot off the presses!  The 8th Circuit Court of Appeals for the United States (Missouri is part of this circuit) ruled on September 3, 2008, that school officials in Watson Chapel, Arkansas, violated the constitutional rights of three students who were disciplined for wearing black armbands to school to protest a uniform policy.  This case is very similar to the 1968 case of Tinker v. Des Moines.  For an outstanding lesson plan, go to www.landmarkcases.org .

• For an excellent lesson plan on the flag burning case, Texas v. Johnson, go to www.landmarkcases.org.

• For up-to-date news on freedom of expression and other constitutional issues that have classroom activities, go to the Bill of Rights Institute, www.billofrightsinstitute.org.  Teachers can sign up to get free e-lessons.  Another website that daily updates freedom of expression current events is the First Amendment Center at www.firstamendmentcenter.org.

Reflection questions for the students after the Constitution Day broadcast:
• Do you think that the new Missouri law makes it clear school officials can punish a student for what he/she writes on a computer not located on school grounds? 
• When you think speech become harassment or stalking? 
• When do you think school officials can discipline a student for Internet communications that originate from the student’s home computer?
• How is Internet speech different from a speech given at school or a sign at a parade?
• Do you think the racist signs at the political rally at the school are protected speech?  Would they be protected speech at a public political rally students attended?
• If you were a member of Congress, would you vote for the flag burning amendment?

4. Freedom of Religion and Schools

The First Amendment begins with these words: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof… These words pertain to the two aspects of religious liberty. 
• The free-exercise clause—this means a person is free to practice any religion or no religion at all.
• The establishment clause--often referred to as the separation of church and state, meaning government could not interfere with religion and could not establish a particular church.  This was extremely important to the Framers of the Constitution, many of whom came from colonies established by people escaping religious persecution in various European countries. 
It is worth noting that The Framers of the Constitution mention religion in the main body of the Constitution, not just in the Bill of Rights.  Article VI concludes with these words: "No religious test shall ever be required as a qualification to any office or public trust under the United States."   In 1787, most European nations had such a requirement.
Since the ratification of the Bill of Rights in 1791, the meaning of the establishment clause has been considerably expanded.  For example, “Congress” now means any governmental entity, including public schools, and establishment of a religion may mean a courthouse displaying the Ten Commandments.  This expansion has occurred through the passage of the 14th Amendment and a series of court cases.   A significant number of these cases deal specifically with religion and the public schools. 

It’s not surprising that there are so many court cases about religion and public schools because there is a natural tension between the establishment clause and the free exercise clause that makes it difficult for public school officials, to make policies about religion. Religious liberty issues in public schools involve both the right of privacy and freedom of expression.  School officials cannot interfere with their students’ right to practice their religion.  However, school officials have to make sure that public schools are religiously neutral, so that parents can be assured that the choices they are making about their children’s religious practices are not interfered with by what is going on in their children’s public school.  The courts have made it clear that parents, as a matter of right of privacy, have the right to make decisions about their children’s religious practices without interference from the government.

Note:  California currently has case going through the courts that teachers and students should watch on home schooling.  Several lower courts ruled that parents who home school their children must have California teaching credentials.  This decision was overturned but the State of California has further appealed it.  This certainly has implications as to how far parents can go in keeping their children’s educations a private matter.

In an attempt to help schools know what they can and cannot do in terms of religion, President Bill Clinton assembled a large group of experts formulate some guidelines for schools on religion in schools.  President George W. Bush continued President Clinton’s work and the U.S. Department of Education now has guidelines for schools.  Here are a few of the guidelines:
• Students have the same right to engage in individual or group prayer and religious discussion during the school day as they do to engage in other comparable activity.
• Students may participate in before- or after-school events with religious content, such as "see-you-at-the-flagpole" gatherings, on the same terms they can participate in other non-curricular activities on school premises.
• Teachers and administrators are prohibited from either encouraging or discouraging religious activity and from participating in such activity with students.
For more guidelines, go to http://www.ed.gov/policy/gen/guid/religionandschools/prayer_guidance.html

5. What Freedom of Religion issues do the students address in the Constitution Day interviews?

The student in the Constitution Day clips ponder whether a school can set aside a room for Muslim student to pray, as is required by their religion,  without the school violating the establishment clause.

Classroom resources for religious liberty issues:
• The First Amendment Center in Washington, D.C. has extensive resources on the issue of religious liberty and schools.  In addition, the Center features all the current news stories about various First Amendment issues.  The website is www.firstamendmentcenter.org .   This website has interesting information about where the term “a wall of separation between church and state” originated and an extensive list of court cases about religion.  There is a special section on the website about religious liberty issues at school.  The “FAQs” section covers every issue ever raised about religion and schools.
• The Bill of Rights Institute has several excellent lesson plans on religion and schools:
a. For an excellent discussion about how Thomas Jefferson and James Madison felt about freedom of religion-- http://www.billofrightsinstitute.org/Newsletters/FAIH/2006-2007/vastatute.pdf .
b. On Lee v.Weisman, the graduation prayer case, to
http://www.billofrightsinstitute.org/Newsletters/faih/2005-2006/weisman.pdf
c. On the 1940s cases about the Jehovah Witnesses refusing to recite the Pledge of Allegiance, which demonstrate the tie between freedom of religion and freedom of expression, go to http://www.billofrightsinstitute.org/Newsletters/faih/2005-2006/gobitas.pdf.

Reflection questions for the students after the Constitution Day broadcast:

• Constitutionally, do you think your school set aside a prayer room for Muslims, who are required to pray several times a day in a very specific fashion?

• Do you think school vouchers are constitutional?  Senator John McCain has stated that he favors school vouchers.  For background and discussion questions about school vouchers, go to http://www.billofrightsinstitute.org/Newsletters/FAIH/2006-2007/vouchers.pdf

• It is quite clear that all of the following are unconstitutional:  teacher led prayer at a public school (Engle v. Vitale), graduation prayer (Lee v. Weisman), and some kinds of student-led prayer activities (Santa Fe v. Doe).  However, in Marsh v. Chambers, the Court said it was okay for a clergyperson to open Nebraska’s legislative sessions with prayers.  (This is done in Missouri, too.)
Why does the Court make the distinction between a legislative body and public school classrooms?  Hint:  captive audience.  (All of these cases may be found at http://supct.law.cornell.edu/supct/ ) 

Note: The Indiana legislature still opens with prayer but the prayer may not mention any particular deity i.e. Jesus.

• In 2007, the Illinois legislature mandated that schools open school with a moment of silence.  Prior to this, Illinois public schools had an option to do this.  After several court cases were filed, the legislature repealed the mandate law and went back to making a moment of silence optional.  Do you think the mandate in any way may have violated the establishment clause?


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.


Principles and processes of governance systems

3.  Knowledge of principles and processes of governance systems

A. (1) Principles and purposes of government.