Wisconsin v. Yoder: State Law or Religious Freedom (05/15/1972)

Wisconsin v. Yoder

Did Wisconsin’s requirement that all parents send their children to school at least until age 16 violate the First Amendment by criminalizing the conduct of parents who refused to send their children to school due to religious beliefs?

Argued: 12/08/1971

Decision Date: 05/15/1972

Decision Record: 7-0; yes

Justices in Favor: Warren Burger, William Douglas, William Brennan, Potter Stewart, Byron White, Thurgood Marshall, Harry Blackmun

Justices Dissenting: None

Effect of the Decision

This case ruled that a person’s First Amendment religious rights are more important than a state requirement.

In Favor

In the favoring side of this case, on the side of the state of Wisconsin, attorney John W. Calhoun argued, “The respondents, here are members of the Old Order Amish religious sect.

They reside in Green County of Southwestern Wisconsin.

In November of 1968, when they refused to send their children beyond the eighth grade, a summon and criminal complaint was filed in the County Court of Green County.

They were tried on April 2, 1969 for violation of the Wisconsin compulsory school-attendance law.

The case was tried to the County Court of Green County and the respondents were found guilty there.

They had a trial de novo in the Circuit Court of Green County where the Court again found them guilty and imposed a minimum fine of $5.00 on each of the respondents.

They appealed to the Wisconsin Supreme Court.

The Wisconsin Supreme Court reversed and this Court granted certiorari on May 24th of this year.

Respondents object to education of the children in public, private, secular or non-secular schools beyond a certain point.

At present time, the objection is eighth grade.

The Trial Court noted the problem with the arbitrary eighth grade cutoff in its decision.

Now, worried about the decisions and opinions that were filed in this case in the courts below, the Trial Court below found that the compulsory school attendance law did interfere with the freedom of the respondents to act in support of their religious beliefs.

They also found that appreciable numbers of the Amish-reared youth do believe the faith.

Both the Trial Courts concluded after several careful consideration of the cases that the compulsory school-attendance laws in Wisconsin were a reasonable exercise of the police power of the state to educate its youth.”


In the opposition, on the side of Yoder, attorney William B. Ball argued, “Wisconsin Attorney General’s attempt to have these Amish parents found criminally guilty has now entered into the fourth year.

This in spite of the fact that in January of this year, the Supreme Court of the State by a six to one vote tendered two conclusions and I am quoting out from the concurring opinion, “that there has been an inadequate showing that the state’s interest in establishing and maintaining an educational system overrides defendant’s right to free exercise of religion” and secondly, “that Amish should not be required to attend the school which meets the requirements of state law beyond the eighth grade.”

And even the one dissenting opinion that of Mr. Justice Heffernan talks about how this prosecution came to be triggered.

So there is strong evidence that the purpose of this prosecution was not to further the compelling interest of the state in education, rather a reprehensible objective under the facts of this case to force the Amish into school only for the purpose of qualifying for augmented state age.

I am going to tax the Court by going over just a little bit some of the facts as they have been presented because I think they are basic, from hearing the questions that have been asked.

The legal basis for this prosecution is the refusal of these parents on religious grounds to afford the three children in question at most two years of high school under a statute which requires not a high school course, not four years of high school, not even one year necessarily but merely school through age 15 not through age 16, through age 15 according to the statute.

Now, the state interest becomes a little bit varied when we think in terms of compelling state interest because if there is a VOs or the technical school, vocational school in the school district then the age limit is 18, up to 18 the child is to attend.

A different standard applies where there is no VO school and the record in this case establishes that there was no vocational school in this district.

Now, then in terms of the interest the state has been trying to compel these children to attend school beyond the eighth grade, we have to realize that for Frieda Yoder, the daughter of Jonas Yoder, one of the three children in question, only one year of schooling was involved because she was 15 years and five months old on the day the criminal complaint was brought against her father.

Barbara Miller would have only six months of the state benefit of additional compulsory education because she was 15 years and eight months old at the time the criminal complaint was brought.

Now, it is the position of the Amish parents that the application of the statute to them violates their free exercise of religion and that there has been no showing whatever, no showing at all that non-application of the statute to them violates or creates any substantial danger to any interest of the State of Wisconsin.

Nobody on our side challenges the fact that the compulsory attendance laws as we speak a compelling state interest.

We have merely, in fact emphasized in this case and in our defense, it is our whole sole support of the statement of this Court in Brown versus the Board of Education wherein the Court said education is a principle instrument in awakening the child’s cultural values and preparing them for later professional training and in helping him to adjust normally to his environment.

This is a superb description of what the Amish people believe in terms of education.

My argument, may it please the Court, will pursue two points.

One the pre-exercise claim and secondly the question of danger to interest of the state which the State of Wisconsin has said existence of substantially degree.

The free exercise point is extremely important that is it is extremely important, but I will try to develop this at some length because here we are not talking about one tenet of the religion being at stake, for example observance of the Sabbath or opposition to military training.

We are not talking here about one particular practice, say spreading the gospel through speech or press or simply as a period of a number of cases.

We are not talking about one forced exercise such as the salute to a greater image or recitation of papers or bible reading.

We are talking about a whole complex of religious interests, religious interests and rights in education and worship and parental nurture, an individual religious choice in vocation, in communal association with respect to teaching and learning with respect to privacy as we have tried to spell out in our brief and indeed we are talking about as will appear the continued existence of the Amish faith community in the United States.

In Graver versus Kansas, Kansas versus Graver rather, the only other State Supreme Court decision in point various Kansas’ attention was paid to the actualities of the Amish religious claim, and therefore, we are dwelling on that to some extent here this morning.”



The court decision was a unanimous one. Justice Warren Burger wrote the court opinion. He wrote, “Aided by a history of three centuries as an identifiable religious sect and a long history as a successful and self-sufficient segment of American society, the Amish in this case have convincingly demonstrated the sincerity of their religious beliefs, the interrelationship of belief with their mode of life, the vital role that belief and daily conduct play in the continued survival of Old Order Amish communities and their religious organization, and the hazards presented by the State’s enforcement of a statute generally valid as to others. Beyond this, they have carried the even more difficult burden of demonstrating the adequacy of their alternative mode of continuing informal vocational education in terms of precisely those overall interests that the State advances in support of its program of compulsory high school education. In light of this convincing showing, one that probably few other religious groups or sects could make, and weighing the minimal difference between what the State would require and what the Amish already accept, it was incumbent on the State to show with more particularity how its admittedly strong interest in compulsory education would be adversely affected by granting an exemption to the Amish. Sherbert v. Verner, supra.

Nothing we hold is intended to undermine the general applicability of the State’s compulsory school attendance statutes or to limit the power of the State to promulgate reasonable standards that, while not impairing the free exercise of religion, provide for continuing agricultural vocational education under parental and church guidance by the Old Order Amish or others similarly situated. The States have had a long history of amicable and effective relationships with church-sponsored schools, and there is no basis for assuming that, in this related context, reasonable standards cannot be established concerning the content of the continuing vocational education of Amish children under parental guidance, provided always that state regulations are not inconsistent with what we have said in this opinion.”

My Opinion:

In this case, I agree with the court decision. Our entire country is pretty much based around the First Amendment, which is where we get the famous name “free country.” America is known for its freedom of speech, expression, and especially religion. If not attending school until at least age 16 goes against ones religion, then that person should not attend school, even if it’s required by law, which in this case, it was. Forcing them to attend school would equate to forcing them to rebel against their religion against their will.

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right

New York Times v. Sullivan: Protection of False Statements (03/09/1964)

New York Times Company v. Sullivan

Did Alabama’s law of not requiring Sullivan to prove that an advertisement personally harmed him and dismissing the same as untruthful due to factual errors, infringe upon the First Amendment’s freedom of speech and freedom of press protections?

Argued: 01/5-6/1964

Decision Date: 03/09/1964

Decision Record: 9-0; no

Justices Majority: Earl Warren, Harry Black, William Douglas, Tom Clark, John Harlan, William Brennan, Potter Stewart, Byron White, Arthur Goldberg

Justices Dissenting: None

Effect of the Decision

This case ruled that false statements, as long as done with no malice, are protected under the First Amendment.

In Favor

In the favoring side of this case, on the side of the the New York Times, attorney Herbert Wechsler argued, “I was saying that the writ calls for review, a judgment of the Supreme Court of Alabama which in our submission poses hazards for these — freedom of the press, not confronted since the early days of the Republic.

The questions presented are, in general, first, how far the civil law of libel may be used by state officials to punish the publication of statements critical of their official conduct or of the conduct of the agencies of which they are in-charge.

And second, how far a state may force a newspaper which publishes a thousand miles away to defend libel actions instituted in its forum because its correspondents go there on occasion to cover news of national importance as — for a very small amount of advertising emanates from sources in the State and a very small circulation of the paper in this instance, 394 copies of the total daily circulation of 650,000 found its way into the State.

The problems arise in this context.

The action was instituted by the respondent, Mr. L.B. Sullivan, one of the three elected Commissioners of the City of Montgomery, Alabama.

It was brought against the Times and four codefendants who were then residents of Alabama, four clergymen, the Reverends Abernathy, Shuttlesworth, Seay and Lowery.

These are the petitioners in Number 40.

The complaint demands damages of $500,000 for libel allegedly contained in two paragraphs of a full page advertisement that was published in the Times on March 29th, 1960.

I should say that similar actions based on the same advertisement were instituted by the other two city Commissioners by a former Commissioner and by the then Governor of the State of Alabama, Governor Patterson.

They had dominance in these other suits, total $2 million.

But this was the first of the five cases brought to trial and it resulted in a verdict in a judgment against all defendants for the $500,000 claim.

Of the other cases, only the James case, the case by Mayor James has gone to trial, there was the same verdict there but that’s pending on motion for new trial in the State of — in the Alabama Court.

The other three cases were removed by the Times to the United States District Court.

The removal was sustained by the District Court but remand was ordered in a divided judgment of the Court of Appeals for the Fifth Circuit.

And that case involving the order of remand is also pending in this Court on petition for writ of certiorari in Number 52 of this term.”


In the opposition, on the side of Sullivan, attorney M. Roland Nachman, Jr., “I would like to address myself to what at the outset to what I consider to be a short difference between Mr. Wechsler’s analysis of the facts and facts as I see them.

And I would like to do that in the context that this case is here obviously after a jury verdict, after the case has been before a trial court on a motion for new trial, after it’s been before the high state appellate court.

And we do not rely on there being something in the record to support it.

We say there was ample and indeed overwhelming evidence to support the jury verdict but we do remind the Court at the outset in view of the trend of the argument as it has gone up to now.

We’re not here like in Norris on a question of whether a judge in a pretrial proceeding correctly decided the question of whether there was discrimination against Negroes in the selection of a grand jury panel.

And we’re not here as in Bridges on the question of whether a judge was correct when he decided a contempt proceeding.

We’re here after a jury trial with all that that means in terms of the Seventh Amendment.

Now, on the issue of falsity, which is where Mr. Wechsler began, I would like to take this step-by-step as this lawsuit progressed.

A demand for retraction was filed as it had to be filed under Alabama law before the lawsuit began.

An answer was received and this is in the record.”




The decision in this case was 9-0, meaning it was unanimous. Justice Brennan wrote the majority opinion, saying, “There was no reference to respondent in the advertisement, either by name or official position. A number of the allegedly libelous statements — the charges that the dining hall was padlocked and that Dr. King’s home was bombed, his person assaulted, and a perjury prosecution instituted against him — did not even concern the police; despite the ingenuity of the arguments which would attach this significance to the word “They,” it is plain that these statements could not reasonably be read as accusing respondent of personal involvement in the acts in question. The statements upon which respondent principally relies as referring to him are the two allegations that did concern the police or police functions: that “truckloads of police . . . ringed the Alabama State College Campus” after the demonstration on the State Capitol steps, and that Dr. King had been “arrested . . . seven times.” These statements were false only in that the police had been “deployed near” the campus, but had not actually “ringed” it, and had not gone there in connection with the State Capitol demonstration, and in that Dr. King had been arrested only four times. The ruling that these discrepancies between what was true and what was asserted were sufficient to injure respondent’s reputation may itself raise constitutional problems, but we need not consider them here. Although the statements may be taken as referring to the police, they did not, on their face, make even an oblique reference to respondent as an individual. Support for the asserted reference must, therefore, be sought in the testimony of respondent’s witnesses. But none of them suggested any basis for the belief that respondent himself was attacked in the advertisement beyond the bare fact that he was in overall charge of the Police Department and thus bore official responsibility for police conduct; to the extent that some of the witnesses thought respondent to have been charged with ordering or approving the conduct or otherwise being personally involved in it, they based this notion not on any statements in the advertisement, and not on any evidence that he had, in fact, been so involved, but solely on the unsupported assumption that, because of his official position, he must have been.”

My Opinion:

I agree with the majority, which in this case was unanimous. Regardless of what one says, the First Amendment, protecting the freedom of speech and expression defends what it is that they say, whether you agree or not. Unless the words are used with malice or intent to threat, everyone has the right to exercise their constitutional right to the freedom of speech. In this case, the statements made were false, but with no malicious intent, therefore protected by the First Amendment

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right

DeShaney v. Winnebago County Department of Social Services

DeShaney v. Winnebago County Department of Social Services

 Does a state’s failure to protect someone against private violence constitute as an infringement of the Due Process Clause of the Fourteenth Amendment?

Argued: 11/2/1988

Decision Date: 02/22/1989

Decision Record: 6-3; no

Justices in Favor: William Rehnquist, Byron White, John Paul Stevens, Sandra Day O’Connor, Antonin Scalia, Anthony Kennedy

Justices Dissenting: William Brennan, Thurgood Marshall, Harry Blackmun

Effect of the Decision

This case ruled that a social service’s failure to protect an individual from one’s parent is not a violation of the Fourteenth Amendment.

In Favor

In the favoring side of this case, on the side of the DeShaney, attorney Donald James Sullivan argued, “We do suggest that there is one and only one exquisitely narrow circumstance where there is an affirmative duty.

I would suggest that there are two primary elements to the one and only one circumstance for which we argue.

The first is the existence of a child/parent relationship.

The other is what I term enmeshment, intricate intimacy, enmeshment of the agents of the state in a particular circumstance which would have three characteristics: the first, an extreme danger to a particular individual child; the second, abundant actual knowledge on the part of the agents of the state; and the third, an actual undertaking by the state to protect the child.”


In the opposition, on the side of Winnebago County Department of Social Services, attorney Mark J. Mingo, “We believe this case involves an attempt by the Petitioners to transform the private wrongdoing of a natural father into state action for purposes of invoking the Fourteenth Amendment.

The primary issue presented is whether a county’s failure to prevent the infliction of harm by a third party upon a person at liberty constitutes a due process violation of the Fourteenth Amendment.

We believe that there was no state deprivation of a constitutionally protected right for three main reasons.

First, the Fourteenth Amendment’s concept of liberty does not include a right to basic protective services from the state.

Secondly, there is no state action in a constitutional sense which caused a deprivation in this case.

Third, we believe that the actions of the social worker did not evince the state of mind necessary to invoke the Fourteenth Amendment.

In addition, we believe that there are two independent reasons for urging affirmance of the Seventh Circuit’s decision.

First, with respect to the municipal Respondents, there was no policy or custom which led to a deprivation and with respect to the individual Respondents, we believe they are clearly entitled to the defense of qualified immunity.”


On the majority side, also the affirming side, Justice Rehnquist wrote the opinion. He wrote, “Judges and lawyers, like other humans, are moved by natural sympathy in a case like this to find a way for Joshua and his mother to receive adequate compensation for the grievous harm inflicted upon them. But before yielding to that impulse, it is well to remember once again that the harm was inflicted not by the State of Wisconsin, but by Joshua’s father. The most that can be said of the state functionaries in this case is that they stood by and did nothing when suspicious circumstances dictated a more active role for them. In defense of them, it must also be said that, had they moved too soon to take custody of the son away from the father, they would likely have been met with charges of improperly intruding into the parent-child relationship, charges based on the same Due Process Clause that forms the basis for the present charge of failure to provide adequate protection.

The people of Wisconsin may well prefer a system of liability which would place upon the State and its officials the responsibility for failure to act in situations such as the present one. They may create such a system, if they do not have it already, by changing the tort law of the State in accordance with the regular lawmaking process. But they should not have it thrust upon them by this Court’s expansion of the Due Process Clause of the Fourteenth Amendment.”

In the side of the opposition, Justice Brennan wrote the opinion. He wrote, “My disagreement with the Court arises from its failure to see that inaction can be every bit as abusive of power as action, that oppression can result when a State undertakes a vital duty and then ignores it. Today’s opinion construes the Due Process Clause to permit a State to displace private sources of protection and then, at the critical moment, to shrug its shoulders and turn away from the harm that it has promised to try to prevent. Because I cannot agree that our Constitution is indifferent to such indifference, I respectfully dissent.”

My Opinion:

In this case, I agree with the majority. Many people would dissent from sympathy of this certain situation. However, looking at the Fourteenth Amendment, which guarantees equal protection, does not have much to do with this case. The social service not taking the father from the son can not be considered a violation of the Fourteenth Amendment. The Constitution does not require the service to take an abusive father away from a son. The abuse was inflicted by the parent, not the service or the state of Wisconsin itself. States could create their own law regarding a predicament such as this one, but as of now, no violation of the Constitution has occurred.

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right

Bethel School District v. Fraser: Right to Lewd Speeches (07/07/1986)

Bethel School District v. Fraser

Does the First Amendment keep a school district from punishing a high school student for giving a lewd speech at a high school assembly?

Argued: 03/03/1986

Decision Date: 07/07/1986

Decision Record: 7-2; no

Justices in Favor: Thurgood Marshall, John Paul Stevens

Justices Dissenting: Warren Burger, William Brennan, Byron White, Harry Blackmun, Lewis Powell, William Rehnquist, Sandra Day O’Connor

Effect of the Decision

This case ruled the student’s First Amendment rights were not violated by the school’s rules because of his lewd speech.

In Favor

In the favoring side of this case, on the side of the Bethel School District No. 403, attorney William A. Coats argued, “The issue is this case is whether a public school district may regulate indecent speech in a public school setting that does not amount to obscene speech under this Court’s Miller versus California standard.

The facts in this case are that on April 26th, 1983, Matt Fraser, a 17 year old high school senior, gave a speech to the associated student body.

The speech was to introduce his candidate for the vice president’s position of the associated student body.

He gave a crude and vulgar speech.

The speech is set forth in full in the briefs and there’s no purpose to repeat it here.

It is important to note that Mr. Fraser did obtain significant reaction to his speech, that some of the students hooted and hollered, some of the students looked bewildered, some looked embarrassed.

Some students even acted out certain physical acts symbolizing various sexual acts.

After the speech, the school administration investigated the incident and provided Mr. Fraser with his due process rights and suspended him for three days and struck him from the list of those candidates who would be considered to be a graduation speaker.

Mr. Fraser appealed to the district court.

The district court, as affirmed by the Ninth Circuit, has ruled that public school districts can only regulate student speech if it is obscene under the Miller versus California standard, or the one exception they seemingly recognized is if the speech caused a physical disruption or there was a reasonable prediction of a physical disruption.

Finally, the district court, as affirmed by the Ninth Circuit, struck down the district’s disruptive conduct rule, holding it was overbroad and vague.

It is well decided and we agree that students do not shed their constitutional rights at the schoolhouse door.

However, it is equally well decided that those constitutional rights will be administered in a way that is sensitive to the speech environment.

We are here because the Ninth Circuit we believe has misconstrued the extent of the rights a student has under the First Amendment in the public school setting.

They failed to recognize the special relationship between students and their teacher; and finally, they failed to recognize the secondary effects such conduct has in the public school setting.

In beginning our analysis of the First Amendment, it is useful to compare this case with this Court’s decision in Tinker versus Des Moines School District.

In Tinker, the facts were that students wore black arm bands into the public schools in protest of the Vietnam War.

There was nothing intrinsically harmful about the black arm bands.

What the school officials were concerned about was that the black arm bands stood for protest against this Government’s position in Vietnam.

Tinker was a viewpoint discrimination case, where the school officials determined that that viewpoint on an important student policy issue should not be interjected in the school system.

Contrasting that case with this fact pattern, it is noteworthy that Mr. Fraser at testimony was asked,

‘What was the purpose of your speech?’

He responded quite candidly:

‘I gave the speech to humor my audience, in the hopes they would vote for my candidate.’

There’s no overriding public policy.”


In the opposition, on the side of the city of Fraser, attorney Jeffrey T. Haley argued, “I will begin my rebuttal, my response, with some response to positions taken by my opposing counsel, and I will begin with what was the most important error by opposing counsel in characterizing the record.

He said that two teacher told Matt Fraser don’t give it, is what he said.

I will quote from the record:

‘I told Matt that his speech was inappropriate and that he probably should not deliver it.’

That was the first teacher, who was most critical of the speech, Mrs. Hicks.

That’s at page 30 of the joint appendix.

The second teacher, I’m quoting:

‘My response at that time was that I told Matt that this would indeed cause problems and that it would raise eyebrows.’

That was the extent of his warning not to give the speech.

None of them suggested that it might violate a school rule.

If fact, the first teacher, who was most critical of it, said in her testimony afterwards at the trial:

‘I wasn’t that there was a school rule regarding that.’

In this case, if the teachers don’t have any idea that such a speech might violate a school rule, when they are charged with enforcement of the school rule as among their duties as teachers, the rule is clearly so vague and so lacking of adequate notice, at least when it comes to First Amendment rights, freedom of speech, that they cannot punish a student who gave a speech after previewing it with three teachers.”


On the side of the majority, Justice Warren Burger wrote the opinion for the court. He wrote, “Respondent, by his father as guardian ad litem, then brought this action in the United States District Court for the Western District of Washington. Respondent alleged a violation of his First Amendment right to freedom of speech, and sought both injunctive relief and monetary damages under 42 U.S.C. § 1983. The District Court held that the school’s sanctions violated respondent’s right to freedom of speech under the First Amendment to the United States Constitution, that the school’s disruptive conduct rule is unconstitutionally vague and overbroad, and that the removal of respondent’s name from the graduation speaker’s list violated the Due Process Clause of the Fourteenth Amendment because the disciplinary rule makes no mention of such removal as a possible sanction. The District Court awarded respondent $278 in damages, $12,750 in litigation costs and attorney’s fees, and enjoined the School District from preventing respondent from speaking at the commencement ceremonies. Respondent, who had been elected graduation speaker by a write-in vote of his classmates, delivered a speech at the commencement ceremonies on June 8, 1983.

The Court of Appeals for the Ninth Circuit affirmed the judgment of the District Court, 755 F.2d 1356 (1985), holding that respondent’s speech was indistinguishable from the protest armband in Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 (1969). The court explicitly rejected the School District’s argument that the speech, unlike the passive conduct of wearing a black armband, had a disruptive effect on the educational process. The Court of Appeals also rejected the School District’s argument that it had an interest in protecting an essentially captive audience of minors from lewd and indecent language in a setting sponsored by the school, reasoning that the School District’s “unbridled discretion” to determine what discourse is “decent” would “increase the risk of cementing white, middle-class standards for determining what is acceptable and proper speech and behavior in our public schools.” 755 F.2d at 1363. Finally, the Court of Appeals rejected the School District’s argument that, incident to its responsibility for the school curriculum, it had the power to control the language used to express ideas during a school-sponsored activity.”

Then in dissent, Justice Thurgood Marshall wrote, “I agree with the principles that Justice Brennan sets out in his opinion concurring in the judgment. I dissent from the Court’s decision, however, because, in my view, the School District failed to demonstrate that respondent’s remarks were indeed disruptive. The District Court and Court of Appeals conscientiously applied Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 (1969), and concluded that the School District had not demonstrated any disruption of the educational process. I recognize that the school administration must be given wide latitude to determine what forms of conduct are inconsistent with the school’s educational mission; nevertheless, where speech is involved, we may not unquestioningly accept a teacher’s or administrator’s assertion that certain pure speech interfered with education. Here the School District, despite a clear opportunity to do so, failed to bring in evidence sufficient to convince either of the two lower courts that education at Bethel School was disrupted by respondent’s speech. I therefore see no reason to disturb the Court of Appeals’ judgment.”

Also in dissent, Justice John Paul Stevens wrote, “It seems fairly obvious that respondent’s speech would be inappropriate in certain classroom and formal social settings. On the other hand, in a locker room or perhaps in a school corridor, the metaphor in the speech might be regarded as rather routine comment. If this be true, and if respondent’s audience consisted almost entirely of young people with whom he conversed on a daily basis, can we — at this distance — confidently assert that he must have known that the school administration would punish him for delivering it?

For three reasons, I think not. First, it seems highly unlikely that he would have decided to deliver the speech if he had known that it would result in his suspension and disqualification from delivering the school commencement address. Second, I believe a strong presumption in favor of free expression should apply whenever an issue of this kind is arguable. Third, because the Court has adopted the policy of applying contemporary community standards in evaluating expression with sexual connotations, this Court should defer to the views of the district and circuit judges who are in a much better position to evaluate this speech than we are.”

My Opinion:

In this case, I agree with the majority decision. A student’s constitutional rights is of course, not “shed at the schoolhouse gates.” However, their rights must be altered to be fit to be appropriate for the school. For example, you can’t leave the middle of class and go outside to protest for or against something. You also can’t bring armed weapons to school for the safety of everyone else. It’s common sense that constitutional rights inside and outside of school are completely different. The right to freedom of speech is normally applied to things one strongly believes in and stands for. The lewd speech given by Fraser was not appropriate to other kids and did not have any important meaning to it. It made complete sense that the school would discipline him for it and have rules against it.

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right

Roper v. Simmons: Minor Execution (03/01/2005)

Roper v. Simmons

Does the execution of minors violate the prohibition of “cruel and unusual punishment” found in the Eighth Amendment and applied to the states through the incorporation doctrine of the 14th Amendment?

Argued: 10/13/2004

Decision Date: 03/01/2005

Decision Record: 5-4; yes

Justices in Favor: John Paul Stevens, Anthony Kennedy, David Souter, Ruth Bader Ginsburg, Stephen Breyer

Justices Dissenting: William Rehnquist, Sandra Day O’Connor, Antonin Scalia, Clarence Thomas

Effect of the Decision

The court ruled that the execution of minors is considered a violation of the Eighth Amendment.

In Favor

In the favoring side of this case, on the side of Roper, attorney James R. Layton argued, “Though bound by Stanford v. Kentucky, the Missouri Supreme Court rejected both its holding and its rationale.

This Court should stay the course it set in Stanford, leaving in the hands of legislators a determination as to the precise minimum age for capital punishment within the realm of Thompson v. Oklahoma, and leaving to jurors responsibility for determining the culpability of individual defendants above that minimum age.

The Missouri court justified its departure from Stanford on Atkins v. Virginia, but the result it reached is quite different from the result in Stanford.

In that… excuse me… in Atkins.

In that case, the Court was addressing mental ability, itself a component of culpability.

The Court announced a principle based on that characteristic, that is, that the mentally retarded are not to be eligible for capital punishment, but then it left to the States the determination of the standard and the means of implementing that principle.

The Missouri Supreme Court, by contrast, jumped beyond the question of maturity, which is an element of culpability analysis, to the arbitrary distinction of age.

It drew a line based purely on age, which is necessarily over-inclusive, and then it gave that line constitutional status, thus depriving legislators and juries of the ability to evaluate the maturity of 17-year-old defenders.”


In the opposition, on the side of Simmons, attorney Seth P. Waxman argued, “Everyone agrees that there is some age below which juveniles can’t be subjected to the death penalty.

The question here is where our society’s evolving standards of decency now draw that line.

15 years ago, this Court found insufficient evidence to justify a bright line at 18, but since Stanford, a consensus has evolved and new scientific evidence has emerged, and these developments change the constitutional calculus for much the same reasons the Court found compelling in Atkins.

We’re talking not only about the whole variety of ways in which our society has concluded that 18 is the bright line between childhood and adulthood and that 18 is the line below which we preserve… presume immaturity.

But the line with respect to executions, the trend is very robust and it is very deep.”


On the side of the majority, Justice Anthony Kennedy wrote the opinion for the court. He wrote, “Over time, from one generation to the next, the Constitution has come to earn the high respect and even, as Madison dared to hope, the veneration of the American people. See The Federalist No. 49, p. 314 (C. Rossiter ed. 1961). The document sets forth, and rests upon, innovative principles original to the American experience, such as federalism; a proven balance in political mechanisms through separation of powers; specific guarantees for the accused in criminal cases; and broad provisions to secure individual freedom and preserve human dignity. These doctrines and guarantees are central to the American experience and remain essential to our present-day self-definition and national identity. Not the least of the reasons we honor the Constitution, then, is because we know it to be our own. It does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom.

    The Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed. The judgment of the Missouri Supreme Court setting aside the sentence of death imposed upon Christopher Simmons is affirmed.”

In opposition, Justice Sandra Day O’Connor wrote, “Reasonable minds can differ as to the minimum age at which commission of a serious crime should expose the defendant to the death penalty, if at all. Many jurisdictions have abolished capital punishment altogether, while many others have determined that even the most heinous crime, if committed before the age of 18, should not be punishable by death. Indeed, were my office that of a legislator, rather than a judge, then I, too, would be inclined to support legislation setting a minimum age of 18 in this context. But a significant number of States, including Missouri, have decided to make the death penalty potentially available for 17-year-old capital murderers such as respondent. Without a clearer showing that a genuine national consensus forbids the execution of such offenders, this Court should not substitute its own “inevitably subjective judgment” on how best to resolve this difficult moral question for the judgments of the Nation’s democratically elected legislatures. See Thompsonsupra, at 854 (O’Connor, J., concurring in judgment). I respectfully dissent.”

Also in opposition, Justice Antonin Scalia wrote, “However sound philosophically, this is no way to run a legal system. We must disregard the new reality that, to the extent our Eighth Amendment decisions constitute something more than a show of hands on the current Justices’ current personal views about penology, they purport to be nothing more than a snapshot of American public opinion at a particular point in time (with the timeframes now shortened to a mere 15 years). We must treat these decisions just as though they represented real law, real prescriptions democratically adopted by the American people, as conclusively (rather than sequentially) construed by this Court. Allowing lower courts to reinterpret the Eighth Amendment whenever they decide enough time has passed for a new snapshot leaves this Court’s decisions without any force–especially since the “evolution” of our Eighth Amendment is no longer determined by objective criteria. To allow lower courts to behave as we do, “updating” the Eighth Amendmentas needed, destroys stability and makes our case law an unreliable basis for the designing of laws by citizens and their representatives, and for action by public officials. The result will be to crown arbitrariness with chaos.”

My Opinion:

In this case, I disagree with the majority opinion and agree with the minority. Just because one is a minor, doesn’t mean they shouldn’t be held accountable for the crimes they commit that may result or deserve a death penalty. By letting them off the hook for a death penalty, this gives minors a little more leniency to do what they want, knowing they won’t lose their life.

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right

Coates v. City of Cincinnati: Prohibiting “Annoying” Speech (05/01/1971)

Coates v. City of Cincinnati

Can laws prohibit annoying speech? 

Argued: 01/11/1971

Decision Date: 05/01/1971

Decision Record: 5-4; no

Justices in Favor: William Douglas, John Harlan, William Brennan, Potter Stewart, Thurgood Marshall

Justices Dissenting: Warren Burger, Hugo Black, Byron White, Harry Blackmun

Effect of the Decision

This case ruled that no laws can prohibit speeches such as annoying speeches because it violates the First Amendment.

In Favor

In the favoring side of this case, on the side of the Coates, attorney Robert R. Lavercombe argued, “This appeal concerns a Cincinnati ordinance which is called the loitering ordinance, but which is really more an unlawful assembly type piece of legislation.

The ordinance provides that when in the company of two or more other people, one so conducts himself as to annoy persons passing by, a crime is committed, unless that conduct takes place at the public meeting of citizens, in which case, it is not crime.

Hamilton County, Ohio includes Cincinnati and the number of other municipalities and several of them have also had ordinances using similar language.

In the 1940, the common police court for Hamilton County which has county wide jurisdiction held that the language used made the legislation unconstitutional.

All over Ohio, the courts reached the same conclusion through the years and in 1968, the appeals court for the Cleveland area wrote in detail at length and with emphasis how the lack of ascertainable standards made the annoyance test in the Cleveland ordinance cause it to represent an unconstitutional exercise of the police power, and it was therefore void for vagueness.

That opinion is quoted at length at pages 5 and 6 in our jurisdictional statement and was written by the same judge who in 1970, he wrote so strongly to the opposite effect in a 4 to 3 decision of the Ohio Supreme Court in this case of Coates versus Cincinnati.

But at least between 1940 and 1968, the annoyance test was considered to be void for vagueness.

Indeed in 1962, the Supreme Court of Ohio held that a dog barking ordinance which used the annoyance test was void for vagueness.

But in 1967 during the summer, Cincinnati along with many other areas had racial disturbances, and the police and perhaps more significantly, other city officials frequently found themselves irritated or provoked, annoyed by the conduct of those who complained and those who disturbed.

And members of the city Government including police were not able to charge many of those who irritated them with trespass or assault and battery or profanity or disorderly conduct.

So the officials and the police who were beset by annoyance which Webster’s collegiate dictionary in the 7th Edition defines as a wearing on the nerves by persistent petty unpleasantness, they arrested those who provoke them and hold them away and that ended the annoyance for a very short time, because that use of that legislative language making annoyance a crime, directly results in contempt for our system of law and order, or I think more properly law and order with the justice.”


In the opposition, on the side of the city of Cincinnati, attorney A. David Nichols argued, “The failure of the appellant here to present facts has been a problem for us as well in this matter, and with the permission of the Court very briefly, the broad statement that Mr. Lavercombe made with regard to the activity involved, is correct.

What happened was on December 7, 1967 with regard to the defendant Coates, he and several confederates gathered outside the United States Federal Building in Downtown, Cincinnati, which is directly across Main Street from the post office and courthouse.

And there Coates and his confederates where demonstrating against the Vietnamese war and the selective service system.”


On the side of the majority, Justice Potter Stewart wrote the opinion for the court. He wrote, “And such a prohibition, in addition, contains an obvious invitation to discriminatory enforcement against those whose association together is ‘annoying’ because their ideas, their lifestyle, or their physical appearance is resented by the majority of their fellow citizens.

The ordinance before us makes a crime out of what under the Constitution cannot be a crime. It is aimed directly at activity protected by the Constitution. We need not lament that we do not have before us the details of the conduct found to be annoying. It is the ordinance on its face that sets the standard of conduct and warns against transgression. The details of the offense could no more serve to validate this ordinance than could the details of an offense charged under an ordinance suspending unconditionally the right of assembly and free speech.”

On the other hand, the minority opinion was written by Justice Byron White. He wrote, “In the case before us, I would deal with the Cincinnati ordinance as we would with the ordinary criminal statute. The ordinance clearly reaches certain conduct but may be illegally vague with respect to other conduct. The statute is not infirm on its face and since we have no information from this record as to what conduct was charged against these defendants, we are in no position to judge the statute as applied. That the ordinance may confer wide discretion in a wide range of circumstances is irrelevant when we may be dealing with conduct at its core.”

My Opinion:

In this case, I agree with the majority decision. The word “annoying” is extremely vague and everyone has a different perspective on everything. Therefore, a law prohibiting “annoying” speech would be unconstitutional because of everyone’s different points of view. If one goes out protesting about something they feel extremely strong about and some other people find that “annoying,” the law banning “annoying” speeches would practically be violating that person’s First Amendment right to freedom of speech and expression.

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right

Reno v. Condon: Driver’s Privacy Protection Act of 1994 (12/12/2000)

Reno v. Condon

Does the Driver’s Privacy Protection Act of 1994 violate the constitutional principles of federalism?

Argued: 11/10/1999

Decision Date: 12/12/2000

Decision Record: 9-0; no

Justices Majority: William Rehnquist, John Paul Stevens, Sandra Day O’Connor, Antonin Scalia, Anthony Kennedy, David Souter, Clarence Thomas, Ruth Bader Ginsburg, Stephen Breyer

Justices Dissenting: None

For Reno

Effect of the Decision

The court ruled Congress had the right to enact the DPPA under the Commerce Clause.

In Favor

In the favoring side of this case, on the side of Reno, attorney Seth P. Waxman argued, “We live in an age in which data bases of personal information are widely used in the national economy.

They are bought and sold, and they’re critical to national marketing, yet their dissemination threatens personal privacy and sometimes safety.

The Driver’s Privacy Protection Act is one of a series of laws in which Congress has balanced the benefits to commerce of disseminating personal information against the costs of that dissemination to personal security.

Beginning with the Privacy Act and the Fair Credit Reporting Act in the early 1970’s, up until the Financial Services Act that was enacted just last week, Congress has acted on a sector by sector basis as new uses of personal data and new threats emerge.

In this case, Congress heard testimony that, while motor vehicle data bases are of particular value in commerce, their dissemination poses unique risks to personal safety and privacy.

Once disseminated, motor vehicle data bases are things in commerce, just as surely as are data bases that belong to financial institutions, cable operators, health care providers, and Congress may therefore regulate a State’s discharge of data into the national economy just as it restricts a State discharge of pollutants or other State activities that have a substantial effect on interstate commerce, like operating airports, or issuing municipal bonds.”


In the opposition, on the side of Condon, Charles Condon argued, “We are for protecting privacy, and this case is not about preventing the horrible crime of stalking.

We’re against stalking.

The issue in this case is whether thousands of State officials across the country can be pressed into Federal service by the Congress to administer a Federal regulatory act.

I think if I could answer Justice Kennedy’s question, which I think goes to the heart of this case, the Driver’s Privacy Protection Act is complex, it’s burdensome, it has all these exceptions, 14 exceptions, and it applies only to the States of the United States, and to follow this Federal mandate, which is unfunded, by the way, State officials must first look at it, interpret it, and then apply it to this…”


The decision of this case was unanimous. Justice William Rehnquist wrote the opinion for the court. He wrote, “We agree with South Carolina’s assertion that the DPPA’s provisions will require time and effort on the part of state employees, but reject the State’s argument that the DPPA violates the principles laid down in either New York or Printz. We think, instead, that this case is governed by our decision in South Carolina v. Baker485 U.S. 505 (1988). In Baker, we upheld a statute that prohibited States from issuing unregistered bonds because the law “regulate[d] state activities,” rather than “seek[ing] to control or influence the manner in which States regulate private parties.” Id., at 514—515. We further noted:

“The NGA [National Governor’s Association] nonetheless contends that §310 has commandeered the state legislative and administrative process because many state legislatures had to amend a substantial number of statutes in order to issue bonds in registered form and because state officials had to devote substantial effort to determine how best to implement a registered bond system. Such ‘commandeering’ is, however, an inevitable consequence of regulating a state activity. Any federal regulation demands compliance. That a State wishing to engage in certain activity must take administrative and sometimes legislative action to comply with federal standards regulating that activity is a commonplace that presents no constitutional defect.” Ibid.

    Like the statute at issue in Baker, the DPPA does not require the States in their sovereign capacity to regulate their own citizens. The DPPA regulates the States as the owners of databases. It does not require the South Carolina Legislature to enact any laws or regulations, and it does not require state officials to assist in the enforcement of federal statutes regulating private individuals. We accordingly conclude that the DPPA is consistent with the constitutional principles enunciated in New York and Printz.

    As a final matter, we turn to South Carolina’s argument that the DPPA is unconstitutional because it regulates the States exclusively. The essence of South Carolina’s argument is that Congress may only regulate the States by means of “generally applicable” laws, or laws that apply to individuals as well as States. But we need not address the question whether general applicability is a constitutional requirement for federal regulation of the States, because the DPPA is generally applicable. The DPPA regulates the universe of entities that participate as suppliers to the market for motor vehicle information–the States as initial suppliers of the information in interstate commerce and private resellers or redisclosers of that information in commerce.”

My Opinion:

In this case, I agree with the rest of the court. Congress had full right to implement the Driver’s Privacy Protection Act. This act protects the privacy of the citizens and keeps states from legally being able to sell information. It doesn’t violate the Tenth or Eleventh Amendments. The Commerce Clause gives Congress permission to enforce acts such as the DPPA.

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right

Heart of Atlanta Motel, Inc. v. United States: Title II 1964 Civil Rights Act; Motel Racial Discrimination (12/14/1964)

Heart of Atlanta Motel, Inc. v. United States

Did Congress, in passing Title II of the 1964 Civil Rights Act, exceed its Commerce Clause powers by depriving motels, such as the Heart of Atlanta, of the right to choose their own customers?

Argued: 10/05/1964

Decision Date: 12/14/1964

Decision Record: 9-0; no

Justice Majority: Earl Warren, Hugo Black, William Douglas, Tom Clark, John Harlan, William Brennan, Potter Stewart, Byron White, Arthur Goldberg

Justices Dissenting: None

Effect of the Decision

This case ruled that Congress has the right to deprive motels of the right to choose their own customers.

In Favor

In the favoring side of this case, on the side of the Heart of Atlanta Motel, attorney Moreton Rolleston, Jr. argued, “This is an appeal from a final judgment in the United States District Court for the Northern District of Georgia, Atlanta Division, which was heard before a three-judge court.

On a complaint filed by the appellant herein, he was a plaintiff below, seeking to declare the Civil Rights Act of 1964 un-constitutional and seeking a permanent injunction against the United States and the Attorney General of the United States at that time, Mr. Kennedy, from enforcing that Act against the appellant.

The government filed not only an answer for the counterclaim, and in the counterclaim, asked for an injunction out of provisions for the Civil Rights Act against the appellant.

The case was heard and decision rendered on the counterclaim of the government and the permanent injunction was granted against the appellant and any officers or agents set forth.”


In the opposition, on the side of the United States, attorney Archibald Cox argued, “The fact that the Court is sitting to here — argument on the day that usually bogged only an opening ceremony or occasion, testifies more forcibly that any words in mind can do, to the importance of the issues being presented today.

Civil Rights Act of 1964 is surely the most important legislation enacted in recent decades.

It’s one of the half-dozen most important clauses, I think.

An Act didn’t last century.

No legislation within my memory has been debated as widely as long or as thorough.

Certainly none has been considered more conscientious.”


The opinion in this case was unanimous. Justice Tom Clark wrote the opinion for the court. He wrote, “We therefore conclude that the action of the Congress in the adoption of the Act as applied here to a motel which concededly serves interstate travelers is within the power granted it by the Commerce Clause of the Constitution, as interpreted by this Court for 140 years. It may be argued that Congress could have pursued other methods to eliminate the obstructions it found in interstate commerce caused by racial discrimination. But this is a matter of policy that rests entirely with the Congress, not with the courts. How obstructions in commerce may be removed — what means are to be employed — is within the sound and exclusive discretion of the Congress. It is subject only to one caveat — that the means chosen by it must be reasonably adapted to the end permitted by the Constitution. We cannot say that its choice here was not so adapted. The Constitution requires no more.”

My Opinion:

In this case, I agree with the court decision. Title II of the Civil Rights Act of 1964 clearly forbade racial discrimination in public places having to do with commerce. The Heart of Atlanta Motel refusing to accept African Americans directly violates that act. There shouldn’t be any argument. I believe that the “right” to decide who to accept is far less important than the African Americans that want to stay at the motel.

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right

Illinois v. Warlow: Flight from Police Officer and High Crime Area; Reasonable Suspicion (01/12/2000)

Illinois v. Wardlow

Is a person’s sudden and unprovoked flight from identifiable police officers, patrolling an area high in crime, sufficiently suspicious to justify the officers stopping  that person?

Argued: 11/02/1999

Decision Date: 01/12/2000

Decision Record: 5-4; yes

Justices in Favor: William Rehnquist, Sandra Day O’Connor, Antonin Scalia, Anthony Kennedy, Clarence Thomas

Justices Dissenting: John Paul Stevens, David Souter, Ruth Bader Ginsburg, Stephen Breyer

Effect of the Decision

This case ruled that the nervous attitude of the person fleeing the high crime area was enough suspicion for the police officers to stop and search him.

In Favor

In the favoring side of this case, on the side of the state of Illinois, attorney Richard A. Devine argued, “On September 9th, 1995, when William Wardlow looked at Officer Nolan and took flight, the officer had reason to believe that there was a problem.

He pursued and stopped Wardlow to investigate and discovered a loaded gun in his possession.

The three key factors in this brief statement are flight from a clearly identified police officer without provocation.

These factors provided reasonable suspicion supporting a Terry stop.”


In the opposition, on the side of Wardlow, attorney Malcolm L. Stewart argued, “It’s certainly true, as respondent and his amici point out, that individuals may, on some occasions, have innocent motives for fleeing the police.

But the purpose of a Terry stop is not to apprehend individuals who are known to be guilty of criminal offenses; rather, it’s to provide a means by which police may resolve ambiguities in situations where they have reasonable… reason to suspect criminal activity, but lack probable cause to make an arrest.

And in our view, flight from identifiable police officers will ordinarily correlate sufficiently with likely involvement in criminal activity.”


On the side of the majority, Chief Justice William Rehnquist wrote the opinion for the court. He wrote, “Respondent and amici also argue that there are innocent reasons for flight from police and that, therefore, flight is not necessarily indicative of ongoing criminal activity. This fact is undoubtedly true, but does not establish a violation of the Fourth Amendment. Even in Terry, the conduct justifying the stop was ambiguous and susceptible of an innocent explanation. The officer observed two individuals pacing back and forth in front of a store, peering into the window and periodically conferring. Terry, 392 U.S., at 5—6. All of this conduct was by itself lawful, but it also suggested that the individuals were casing the store for a planned robbery. Terryrecognized that the officers could detain the individuals to resolve the ambiguity. Id., at 30.

    In allowing such detentions, Terry accepts the risk that officers may stop innocent people. Indeed, the Fourth Amendment accepts that risk in connection with more drastic police action; persons arrested and detained on probable cause to believe they have committed a crime may turn out to be innocent. The Terrystop is a far more minimal intrusion, simply allowing the officer to briefly investigate further. If the officer does not learn facts rising to the level of probable cause, the individual must be allowed to go on his way. But in this case the officers found respondent in possession of a handgun, and arrested him for violation of an Illinois firearms statute. No question of the propriety of the arrest itself is before us.”

In opposition, Justice John Paul Stevens wrote, “The State, along with the majority of the Court, relies as well on the assumption that this flight occurred in a high crime area. Even if that assumption is accurate, it is insufficient because even in a high crime neighborhood unprovoked flight does not invariably lead to reasonable suspicion. On the contrary, because many factors providing innocent motivations for unprovoked flight are concentrated in high crime areas, the character of the neighborhood arguably makes an inference of guilt less appropriate, rather than more so. Like unprovoked flight itself, presence in a high crime neighborhood is a fact too generic and susceptible to innocent explanation to satisfy the reasonable suspicion inquiry. See Brown v. Texas, 443 U.S. 47, 52 (1979); see also n. 15, supra.

    It is the State’s burden to articulate facts sufficient to support reasonable suspicion. Brown v. Texas, 443 U.S. 47, 52 (1979); see also Florida v. Royer, 460 U.S. 491, 500 (1983) (plurality opinion). In my judgment, Illinois has failed to discharge that burden. I am not persuaded that the mere fact that someone standing on a sidewalk looked in the direction of a passing car before starting to run is sufficient to justify a forcible stop and frisk.”

My Opinion:

In this case, I agree with the majority opinion. Wardlow fled an area with identifiable police officers around and high crime. It’s no wonder the police stopped him. By running from an area such as Chicago, that’s definitely enough reason for a police officer to stop him. It indicates fear and anxiousness. And that evidently leads to people thinking you may have done something bad or are planning to do something unacceptable by the police. This justifies and provides reasonable suspicion for the police officers to search Wardlow. This was not a violation of the Fourth Amendment.

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right

Grutter v. Bollinger: Race Consideration in College Admissions (05/23/2003)

Grutter v. Bollinger

Does the University of Michigan Law School’s use of racial preferences in student admissions infringe upon the Equal Protection Clause of the Fourteenth Amendment or Title VI of the Civil Rights Act of 1964?

Argued: 04/01/2003

Decision Date: 05/23/2003

Decision Record: 5-4; no

Justices in Favor: John Paul Stevens, Sandra Day O’Connor, David Souter, Ruth Bader Ginsburg. Stephen Breyer

Justices Dissenting: William Rehnquist, Antonin Scalia, Anthony Kennedy, Clarence Thomas

Effect of the Decision

This case ruled that the use of a student’s race is permitted when deciding the admission of college students.

In Favor

In the favoring side of this case, on the side of Grutter, attorney Kirk O. Kolbo argued, “Barbara Grutter applied for admission to the University of Michigan Law School with a personal right guaranteed by the Constitution that she would not have her race counted against her.

That race… that the application would be considered for free from the taint of racial discrimination.

The law school intentionally disregarded that right by discriminating against her on the basis of race as it does each year in the case of thousands of individuals who apply for admission.

The law school defends its practice of race discrimination as necessary to achieve a diverse student body.

With the loss… with the diversity that the law school is committed to ensuring and meaningful numbers or critical mass, is of a narrow kind defined exclusively by race and ethnicity.

The constitutional promise of equality would not be necessary in a society composed of a single homogenous mass.

It is precisely because we are a nation teeming with different races and ethnicities… one that is increasingly interracial, multiracial, that it is so crucial for our Government to honor its solemn obligation to treat all members of our society equally without preferring some individuals over others.”


In the opposition, on the side of Earls, attorney Theodore B. Olson argued, “The Michigan law school admissions program fails every test this Court has articulated for evaluating governmental racial preferences.

We respect the opinions of those individuals, but the position of the United States is that we do not accept the proposition that black soldiers will only fight for… black officers or the reverse that race neutral means should be used in the academies as well as other places.”


On the side of the majority, Justice Sandra Day O’Connor wrote the opinion for the court. She wrote, “In summary, the Equal Protection Clause does not prohibit the Law School’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body. Consequently, petitioner’s statutory claims based on Title VI and 42 U.S.C. § 1981 also fail. See Bakke, supra, at 287 (opinion of Powell, J.) (“Title VI … proscribe[s] only those racial classifications that would violate the Equal Protection Clause or the Fifth Amendment”); General Building Contractors Assn., Inc. v. Pennsylvania, 458 U.S. 375, 389—391 (1982) (the prohibition against discrimination in §1981 is co-extensive with the Equal Protection Clause). The judgment of the Court of Appeals for the Sixth Circuit, accordingly, is affirmed.”

In opposition, Justice William Rehnquist wrote, “Finally, I believe that the Law School’s program fails strict scrutiny because it is devoid of any reasonably precise time limit on the Law School’s use of race in admissions. We have emphasized that we will consider “the planned duration of the remedy” in determining whether a race-conscious program is constitutional.Fullilove, 448 U.S., at 510 (Powell, J. concurring); see also United States v. Paradise480 U.S. 149, 171 (1987) (“In determining whether race-conscious remedies are appropriate, we look to several factors, including the … duration of the relief ”). Our previous cases have required some limit on the duration of programs such as this because discrimination on the basis of race is invidious.

    The Court suggests a possible 25-year limitation on the Law School’s current program. See ante, at 30. Respondents, on the other hand, remain more ambiguous, explaining that “the Law School of course recognizes that race-conscious programs must have reasonable durational limits, and the Sixth Circuit properly found such a limit in the Law School’s resolve to cease considering race when genuine race-neutral alternatives become available.” Brief for Respondents Bollinger et al. 32. These discussions of a time limit are the vaguest of assurances. In truth, they permit the Law School’s use of racial preferences on a seemingly permanent basis. Thus, an important component of strict scrutiny–that a program be limited in time–is casually subverted.

    The Court, in an unprecedented display of deference under our strict scrutiny analysis, upholds the Law School’s program despite its obvious flaws. We have said that when it comes to the use of race, the connection between the ends and the means used to attain them must be precise. But here the flaw is deeper than that; it is not merely a question of “fit” between ends and means. Here the means actually used are forbidden by the Equal Protection Clause of the Constitution.”

Also disagreeing with the majority, Justice Anthony Kennedy wrote, “It is regrettable the Court’s important holding allowing racial minorities to have their special circumstances considered in order to improve their educational opportunities is accompanied by a suspension of the strict scrutiny which was the predicate of allowing race to be considered in the first place. If the Court abdicates its constitutional duty to give strict scrutiny to the use of race in university admissions, it negates my authority to approve the use of race in pursuit of student diversity. The Constitution cannot confer the right to classify on the basis of race even in this special context absent searching judicial review. For these reasons, though I reiterate my approval of giving appropriate consideration to race in this one context, I must dissent in the present case.”
In a separate opinion, Justice Antonin Scalia wrote, “Unlike a clear constitutional holding that racial preferences in state educational institutions are impermissible, or even a clear anticonstitutional holding that racial preferences in state educational institutions are OK, today’s GrutterGratz split double header seems perversely designed to prolong the controversy and the litigation. Some future lawsuits will presumably focus on whether the discriminatory scheme in question contains enough evaluation of the applicant “as an individual,” ante, at 24, and sufficiently avoids “separate admissions tracks” ante, at 22, to fall under Grutter rather than Gratz. Some will focus on whether a university has gone beyond the bounds of a “ ‘good faith effort’ ” and has so zealously pursued its “critical mass” as to make it an unconstitutional de facto quota system, rather than merely “ ‘a permissible goal.’ ” Ante, at 23 (quoting Sheet Metal Workers v. EEOC, 478 U. S 421, 495 (1986) (O’Connor, J., concurring in part and dissenting in part)). Other lawsuits may focus on whether, in the particular setting at issue, any educational benefits flow from racial diversity. (That issue was not contested in Grutter; and while the opinion accords “a degree of deference to a university’s academic decisions,” ante, at 16, “deference does not imply abandonment or abdication of judicial review,” Miller-El v. Cockrell537 U.S. 322, 340 (2003).) Still other suits may challenge the bona fides of the institution’s expressed commitment to the educational benefits of diversity that immunize the discriminatory scheme in Grutter. (Tempting targets, one would suppose, will be those universities that talk the talk of multiculturalism and racial diversity in the courts but walk the walk of tribalism and racial segregation on their campuses–through minority-only student organizations, separate minority housing opportunities, separate minority student centers, even separate minority-only graduation ceremonies.) And still other suits may claim that the institution’s racial preferences have gone below or above the mystical Grutter-approved “critical mass.” Finally, litigation can be expected on behalf of minority groups intentionally short changed in the institution’s composition of its generic minority “critical mass.” I do not look forward to any of these cases.”
Also writing his own opinion, Justice Clarence Thomas wrote, “Indeed, the very existence of racial discrimination of the type practiced by the Law School may impede the narrowing of the LSAT testing gap. An applicant’s LSAT score can improve dramatically with preparation, but such preparation is a cost, and there must be sufficient benefits attached to an improved score to justify additional study. Whites scoring between 163 and 167 on the LSAT are routinely rejected by the Law School, and thus whites aspiring to admission at the Law School have every incentive to improve their score to levels above that range. See App. 199 (showing that in 2000, 209 out of 422 white applicants were rejected in this scoring range). Blacks, on the other hand, are nearly guaranteed admission if they score above 155. Id., at 198 (showing that 63 out of 77 black applicants are accepted with LSAT scores above 155). As admission prospects approach certainty, there is no incentive for the black applicant to continue to prepare for the LSAT once he is reasonably assured of achieving the requisite score. It is far from certain that the LSAT test-taker’s behavior is responsive to the Law School’s admissions policies.16 Nevertheless, the possibility remains that this racial discrimination will help fulfill the bigot’s prophecy about black underperformance–just as it confirms the conspiracy theorist’s belief that “institutional racism” is at fault for every racial disparity in our society.

    I therefore can understand the imposition of a 25-year time limit only as a holding that the deference the Court pays to the Law School’s educational judgments and refusal to change its admissions policies will itself expire. At that point these policies will clearly have failed to “ ‘eliminat[e] the [perceived] need for any racial or ethnic’ ” discrimination because the academic credentials gap will still be there. Ante, at 30 (quoting Nathanson & Bartnika, The Constitutionality of Preferential Treatment for Minority Applicants to Professional Schools, 58 Chicago Bar Rec. 282, 293 (May—June 1977)). The Court defines this time limit in terms of narrow tailoring, see ante, at 30, but I believe this arises from its refusal to define rigorously the broad state interest vindicated today. Cf. Part II, supra. With these observations, I join the last sentence of Part III of the opinion of the Court.”

My Opinion:

In this case, I agree with the minority very strongly. Even after writing an opinion about two other cases very similar to this one, I still fail to come to terms with how taking a person’s race into consideration when deciding their admission is not a violation of the Fourteenth Amendment, even if it’s just a little bit. If a person deserves to get into a specific college because they have worked hard for it and have good grades, they should very well get in, but if it’s something as simple as their race holding them back; something they literally have no control over, that’s fair well a complete violation of the Fourteenth Amendment, which guarantees “equal protection under the law.” “Diversity” is not an advantage. A person is more likely to choose to attend a college because they have a long record of successful alumnis or good professors teaching a major that specific person is interested, than simply because they have diversity. There is practically zero benefit of having a diverse environment other than the students there get to experience different cultures, etc, which could be easily done in such a diverse country such as the United States. I fail to see why race should be taken into account for admissions now, and I will continue to be bewildered by this far in the future. Like Antonin Scalia wrote, “The Constitution proscribes government discrimination on the basis of race, and state-provided education is no exception.”

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right