Academy Curricular Exchange
Columbia Education Center
Social Studies



TITLE:  Establishing Justice

AUTHOR:  Joan Thompson, Blackfoot High School;
         Blackfoot, Idaho

GRADE LEVEL:  Eleventh or Twelfth grade American history,
              government, or law class

OVERVIEW:
The decisions of the Supreme Court during the 1960's had a
profound effect in the areas of civil and due process rights
of the accused. The Court took the initiative in expanding
the rights of criminal defendants, particularly at the state
level; as a result the Court itself became the focus of
public controversy. This moot court activity will examine
some major cases during the 1960's. Students need to be
aware of the impact that the Warren Court decisions had on
society to understand the significance of recent
constitutional history in their own lives. This lesson can
be used when studying the Court system in United States
Government or American history when studying the 1960's.

TIME TO COMPLETE:
Four-five days. Some out-of-class research may be required.

OBJECTIVE(s):As a result of this lesson, students will:
*  gain increased knowledge on the effects of the Warren
   Court on civil and due process rights
*  reinforce their understanding of judicial review
*  practice group process and critical thinking skills
*  identify the Constitutional guarantees in each case
   studied
*  understand the issues and arguments involved in the
   cases

MATERIALS:
Background information on Warren Court
     (Con-Constitutional Law Case Essays)
Handout 1: Information on how to conduct a moot court
Handout 2: Summary of cases used in lesson

ACTIVITIES AND PROCEDURES:
1.   Divide the class into groups: attorneys for petitioner,
     attorneys for respondent, justices, and court
     observers.
2.   Distribute Handout 1: Information on how to conduct a
     moot court. Discuss the content, insuring that they
     understand the process involved in this activity
3.   Distribute Handout 2: Summary of cases used in lesson,
     to all students. Assign a case to each group. Have them
     prepare their arguments as instructed in Handout 1.
4.   Instruct the justices to review the cases and select
     two to be orally argued before the court. After an
     appropriate period of time have the court announce
     which two cases it will hear.
5.   Conduct the moot court hearings.
6.   After the cases have been argued, allow time for the
     justices to deliberate and prepare a decision.  Have
     one justice write the majority opinion and one write a
     dissenting opinion (if any).
7.   Explain how the Supreme Court decided each case and
     discuss the Court's reasoning.
8.   Debrief the activity by giving the background on the
     Warren Court below. Students should be aware that the
     Cold War and foreign policy were major issues,
     particularly America's involvement in the Vietnam War.
     Civil rights for Black Americans continued to remain an
     important public policy area. The people of the U.S.
     were demanding more accountability by the government,
     whether it be in one-person-one-vote, civil liberties,
     or the right to protest the Vietnam War. The Warren
     Court played an important part in public policy when it
     issued its ruling in Baker v. Carr and Reynolds v. Sims
     (cases dealing with reapportionment). The Warren Court
     was innovative in many areas of civil liberties
     involving the first amendment. Some of the court's
     decisions were highly controversial. The court in many
     instances helped set a public policy agenda for the
     nation. The 1960's was a decade of social and cultural
     change brought on by the anti-war movement, the civil
     rights movement, and the war on poverty. These
     movements with the help of the Warren Court changed the
     political landscape of the country. "When all is said
     and done, Earl Warren was unquestionably one of the
     great Chief Justices in terms of his impact on
     constitutional law" (Constitutional Law, page 152). Ask
     that all cases studied be discussed in the light of
     this historical background.

TYING IT ALL TOGETHER:  An evaluation of the presentation
will be done using Handout 1. The teacher will also discuss
the other cases not chosen  for argument. Some students may
be assigned to write a report on the Supreme Court.

TIPS FROM THE TEACHER:
A discussion on the differences between trial courts and
appellate courts should be presented to the students.

The appellate courts do not hold trials; they hear oral
arguments from attorneys, study briefs written arguments
that attorneys submit, and review the record of the case in
lower court. The appellate court does not concern itself
with the facts in a case. Rather, its decision turns on
whether the law was correctly interpreted and applied.

Research some background to the events of the 1960's.


                         HANDOUT 1

                 "Conducting a Moot Court"

The instructor will explain to the students what an appeals
court is. Students will be told that in appeals court no
witnesses are used and no new evidence may be presented. The
attorneys for both sides will present their oral arguments
before the judges.

The court will consist of a panel of justices; this can be
any number: 3, 5, 7, 9 (one will be a Chief Justice). There
will be a team of attorneys for the petition and one for the
respondent. The remainder of the class can be observers or
reporters for the T.V. station or local newspapers.


Roles and Responsibilities
At any time the judges may questions the attorneys about the
case. The chief justice will maintain the order of the
court, extend the time limit for attorneys if requested, set
down the rules of the court, and assign judges to write the
majority and dissenting opinions. Judges may express their
opinion about the case; they may also try to convince the
other judges to side with them.

The attorneys must try to defend their side. The
petitioner's attorney should show why the client's treatment
was in error, and how that treatment violated the
Constitution or state statute. Previous court decisions may
be used to back up presentation.

Respondent's attorneys must try to present arguments that
best represent their client's position. Previous court
decisions may be used to back up presentation. Both sides
should discuss the facts of the case.

The rest of the class will take notes and turn in a new
article or interview with role players.


Preparation

Each team of attorneys will be given time to prepare their
cases. They should research all material dealing with the
case.

Each attorney will have ten minutes to present their
arguments; two minutes of this will be used for rebuttal.
The judges will then meet and deliberate on the case. This
may be done in private or in front of the class. If the
deliberation is in front of the class, the judges will be
the only ones allowed to speak.

After the deliberation the Chief Justice will give the
opinion. The Chief Justice will assign justices to write a
majority and minority opinion which will be read to the
class later.


Debriefing

Attorneys should be allowed to express their feeling on the
roles they played. They should discuss what skills they
learned.

Judges should express their feeling on their roles. They
should express what they felt their responsibilities were
and what they felt were problems they faced.

The rest of the class will evaluate the simulation using the
following guide:

     Plaintiff Respondent

     (1) Which team had the best presentation?
     (2) Which team had the best delivery?
     (3) Which team had the most convincing argument?
     (4) Which team had the best rationale?
     (5) Which team seems to have done the most research?
     (6) Which team reacted best to the judges'
         questioning?
After the class answers these questions, they should be
discussed by the class as a whole.

Finally, the class should discuss whether they agree with
the judges' decision. Was it reasonable? Why or why not?



                         HANDOUT  2

                      Summary of Cases

Brown v. Board of Education of Topeka, 74 S. Ct. 686 (1954)

A series of cases went to the Supreme Court from the state
of Kansas, South Carolina, Virginia, and Delaware. Since all
of the cases involved the same basic problem■black minors,
through their legal representatives, seeking the aid of the
courts in obtaining admission to the public schools of their
respective communities on a nonsegregated basis■ all were
determined by one decision of the Court.  The Kansas case is
taken as the nominal leading case. in the various states,
the black children were of elementary or high school age or
both. Segregation requirements were on a statutory and state
constitutional basis except in Kansas, where only statutory
provisions were involved.

            Opinions by Mr. Chief Justice Warren
                        (Vote: 9-0)

Question - Does segregation of children in public schools
solely on the basis of race, even though the physical
facilities and other "tangible" factors may be equal,
deprive the children of the minority group of equal
educational opportunities?

Decision - Yes.

Reason■Intangible factors involved in the separation of
students of similar age and qualifications solely because of
their race need very serious consideration. Such segregation
of white and colored children in public schools has a
detrimental effect upon the colored children, an impact,
that is greater when it has the sanction of law. It
"generates a feeling of inferiority as to their status in
the community that may affect their hearts and minds in a
way unlikely ever to be undone.... We conclude that in the
field of public education the doctrine of "separate but
equal" has no place. Separate educational facilities are
inherently unequal. Therefore, we hold that the plaintiffs
and others similarly situated for whom the actions have been
brought are, by reason of the segregation complained of,
deprived of the equal protection of the laws guaranteed by
the Fourteenth Amendment."

Miranda v. Arizona, 86 S. Ct. 1602 (1966)

Here four cases were decided by one opinion. They came from
Arizona, New York, California, and the federal courts. In
each of the cases the law enforcement officials had taken
the defendant into custody and had interrogated him for the
purpose of obtaining a confession. At no time did the police
effectively advise a defendant of his right to remain silent
or of his right to consult with his attorney. In the lead
case, Ernesto Miranda had been arrested at his  home and
then taken to a Phoenix police station where he was
questioned by two police officers. After two hours. he made
a written confession. He was subsequently convicted of
kidnapping and rape. In the New York case the charge was
first degree robbery, in the California case it was robbery
and first degree murder, and in the federal case robbery of
a savings and loan association and a bank in California.



            Opinion by Mr. Chief Justice Warren

Question - Are statements obtained from an individual
subjected to custodial police interrogation under these
circumstances admissible as evidence?

Decision - No.

Reason - An individual held for interrogation must be
clearly informed that he has the right to consult counsel
and  to have his lawyer with him during interrogation.
Financial inability of an accused person to furnish counsel
is no excuse for the absence of counsel since in such an
instance a lawyer must be appointed to represent the
accused. If he answers some questions and gives some
information on his own prior to invoking his right to remain
silent this is not to warrant an assumption that the
privilege has been waived.

The Court noted that "the prosecution may not use
statements, whether exculpatory, or inculpatory, stemming
from custodial interrogation of the defendant unless it
demonstrates the use of procedural safeguards effective to
secure the privilege against self-incrimination. By
custodial interrogation, we mean questioning initiated by
law enforcement officers after a person has been taken into
custody or otherwise deprived of his freedom of action in
any significant way."

Katz v. United States, 88 S. Ct. 507 (1967)

Charles Katz was convicted in federal district court in
California of violation of federal communication statutes by
transmitting wagering information by telephone from Los
Angeles to Miami and Boston. At the trial, evidence was
introduced of Katz s telephone conversations at his end
overheard by FBI agents who had attached an electronic
listening and recording device 'to the outside of the public
telephone booth from which Katz had placed his calls. The
court of appeals had rejected the contention that the
recordings had been obtained in violation of the Fourth
Amendment because there was "no physical entrance into the
area occupied" by the accused.

               Opinion by Mr. Justice Stewart

Question - Was the search and seizure conducted in this case
in compliance with constitutional standards?

Decision - The Fourth Amendment protects people and not
simply "areas" against unreasonable searches and seizures.
The reach of that amendment cannot turn upon the presence or
absence of a physical intrusion into any given enclosure.
The protection does not extend only to tangible property and
to incidents where there has been trespass. What a person
seeks to preserve as private, even in an area accessible to
the public, may be constitutionally protected.

In this case the surveillance was so narrowly circumscribed
that a judge could have authorization bypassed the
safeguards provided by an objective predetermination of
probable cause and substituted instead the far less reliable
procedure of an after-the- event justification.  This sort
of bypassing leaves individuals secure from Fourth Amendment
violations only in the discretion of the police.


School District of Abington Township, Pa. v. Schempp, 374 U.
S. 203; 83 S. Ct. 1560; 10 L. Ed. 2d
844 (1963)

Pennsylvania by stature required that at least ten verses
from the Bible should be read, without comment, at the
opening of each public school on each school day. Any child
could be excused from attending the Bible reading upon
written request of  his parent or guardian.  The Schempp
family, members of the Unitarian church, brought suit to
enjoin enforcement of the statute.  In a companion case,
(Murray v. Curlett), Mrs., Murray and her son, professed
atheists, brought similar action against a similar situation
in Baltimore.

                Opinion by Mr. Justice Clark

Question - Does the requirement of Bible reading in public
school violate the establishment clause of the First
Amendment made applicable to the states by the Fourteenth
Amendment?

Decision - Yes.

Reason - The Court noted that the Establishment Clause
withdrew all legislative power respecting religious belief
or the expression thereof. "The test may be stated as
follows:  What are the purpose and the primary effect of the
enactment?  If either is the advancement or inhibition of
religion, then the enactment exceeds the scope of
legislative power as circumscribed by the Constitution...The
conclusion follows that in both cases the laws require
religious exercises and such exercises are being conducted
in direct violation of the rights (of the appellees) and the
petitioners. Nor are these required exercises mitigated by
the fact that individual students may absent themselves upon
parental request, for that fact furnished no defense to a
claim of unconstitutionality under the Establishment
Clause."

Mapp v. Ohio, 367 U. S. 643: 81 S. Ct. 1684: 6 L Ed. 2d 1081
(1961)

Cleveland police officers requested admission to a home to
seek a fugitive who was reportedly hiding there.  They had
also received information that a large amount of policy
paraphernalia was hidden in the house.  Without a warrant,
the police forced their was into the house.  There they
found obscene materials.  This evidence was used to convict
Miss Mapp in the state courts.

                Opinion by Mr. Justice Clark

Question - Is evidence obtained in violation of the search
and seizure provisions of the Fourth
Amendment admissible in a state court?

Decision - No.

Reason - Previous decisions have held that the security of
one's privacy against arbitrary intrusion of the police is
implicit in the concept of ordered liberty and as such
enforceable against the states through the due process
clause.  However, the Court has previously refused to
exclude evidence thus secured from state courts as "an
essential ingredient of the right."  Since the Fourth
Amendment's right of privacy has been declared enforceable
against the states through the due process clause of the
Fourteenth Amendment, it is enforceable against them by the
same sanction of exclusion as is used against the federal
government.  All evidence obtained by searches and seizures
in violation of the Constitution is, by that same authority,
inadmissible in a state court.

Heart of Atlanta Motel, Inc., v. United States. 379 U.S.
241: 85 S. Ct. 348 13 L. ed. 2nd 258 (1964)

The owner of a large motel in Atlanta, Georgia, which
restricted its clientele to white persons, brought suit for
a declaratory judgment and for an injunction to restrain
enforcement of Title 11 of the Civil Rights Act of 1964,
which outlawed distinguishing on the basis of race, color,
religion, or national origin in making available public
accommodations.


                Opinion by Mr. Justice Clark

Question - Does Congress have the power to enact this type
of legislation under the power to regulate interstate
commerce?

Decision - Yes.

Reason -  The power of Congress over interstate commerce
includes the power to regulate local incidents and
activities in both the states of origin and destination of
the commerce that might have a substantial and harmful
effect on that commerce.  The Court concluded 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."
The Court made brief mention of the power to enforce the
Fourteenth Amendment, but its decision was basically that
the commerce power was here being exercised.


----------------------------------------------------------------------

Click here to return to OFCN's Academy Curricular Exchange

Click here to return to OFCN's Academy
Click here to return to OFCN's Main Menu

----------------------------------------------------------------------

John Kurilecjmk@ofcn.org