Articles of interest

If you're curious about how the post-Brown desegregation fallout affected Seattle, check out this excellent article at HistoryLink.org, a fabulous web archive of local history. On the same site, read an interview that depicts the personal side of forced busing.

Also, a little bit off the specific topic of school desegregation, but related to racial discrimination, is this op-ed piece from George Will this week. It's a bit more relevant to the Regents v Bakke (affirmative action) case we discussed in December, but I thought it was worth mentioning here.

Milliken v Bradley (1974)

This case concerned the segregation practices of the Detroit school district, which was the fifth largest in the nation in 1970. Several black students and the NAACP filed the suit against the Detroit school district alleging past and present discrimination in the Detroit system, particularly in the drawing of school district and attendance zone boundaries. Lower courts found that there was discrimination and ordered the system to desegregate. Because of white flight to the suburbs, the Detroit school district was largely black, making it difficult to truly desegregate. A plan was devised to include surrounding majority white school districts in the desegregation plan, even though those districts had not engaged in any illegal segregation. This was believed necessary because without their participation, there could not be a racial balance in Detroit's schools.

If you were a Supreme Court justice, would you approve the plan to desegregate multiple school districts even though only one school district had been found to have illegally discriminated? Explain.

Keyes v School District #1, Denver, Colorado (1973)

This was one of the first cases dealing with school segregation outside of the South. In this case, the lower courts found that the Denver School District deliberately engaged in discrimination in the Park Hill section of the district by building schools in certain areas, gerrymandering student attendance zones, and by the excessive use of mobile classroom units, among other things. The petitioners in the case not only wanted the Park Hill section of the city to be desegregated, but wanted the courts to order desegregation of all segregated schools in the city of Denver, particularly the heavily segregated schools in the core city area, even though there was no evidence of a deliberate attempt to segregate students in all-black schools there.

If you were a Supreme Court justice, would you order the entire district desegregated, or just the Park Hill area? Explain.

Swann v Charlotte-Mecklenberg Board of Education (1971)

The school district in question was a part-urban, part-rural district covering 550 square miles and serving 84,000 pupils in 101 schools. The school population was 29 percent black and those pupils were concentrated in one quadrant of Charlotte. Even after the Brown decision, more than half of the black students attended schools without any white students or teachers. The federal district court adopted a plan to scatter the highly concentrated black student population by transporting students. The plan would involve 13,000 students and require 100 new buses at a cost of millions of dollars.

If you were a Supreme Court justice, would you order the desegregation of this school district through a busing system to disperse students? Explain.

Green v County School Board of New Kent County (1968)

States and counties adopted many different plans to desegregate their schools. In 1965, the New Kent County school board adopted a "freedom-of-choice plan," which essentially allowed students in the rural, residentially integrated district to choose which of the two schools they wished to attend: the formerly all-black Watkins School or the formerly all-white New Kent School. After three years of the new plan, no whites had elected to attend Watkins and only 115 blacks attended New Kent. The black school children in this case contended that the "freedom-of-choice plan" in practice operated to perpetuate the racially segregated school system. It placed the burden of desegregation on the black children's shoulders.

If you were a Supreme Court justice, would you rule this "freedom-of-choice plan" constitutional? Explain.

Homework due Feb 5

If You Were a Supreme Court Justice

The Brown v. Board of Education decision did not dictate how schools should desegregate. Many school districts did not want to desegregate (surprise surprise) and experimented with ways to get around the Court decision in Brown. Many lawsuits were filed by minority students, the NAACP, and the Justice Department to force school districts to comply with the Brown decision. The law, however, was not always clear. Taking into consideration what you know about the Brown case (refer to your handout) and the spirit in which it was written, choose at least one of the cases described in the following posts and explain (in the comments of that post) how you would decide the case.

CIA tapes deleted

CIA officials ignored a court oder, and deleted a tape of an interrogation and possible torture of two suspected terrorists. They said they deleted them to hide the identity of the interrogators, and that the tapes didn't have any relevance to the torture investigations.

http://civilliberty.about.com/od/tortureandrendition/p/torture_tapes.htm

"No Match" rule

The Department of Homeland Security has been trying to use social security records to enforce immigration laws. Judge Charles R. Breyer shot them down finding that the rule would effect thousands of innocent citizens. The Bush administration plans to ropose a similar law that they say will pass legal muster.

www.aclu.org/immigrants/workplace/32870prs20071124.html

Cheney wants surveillance law expanded

Cheney's been trying to convince congress not only to renew the "Protect America Act," but to expand it as well. As it is, it gives the administration authority to listen to the phone conversations and read the emails of suspected terrorists and eases up the requirement to get permission from a special court before doing so. The Bush administration and some of their friends in congress want to add a part to it that would make phone companies and other communications providers immune from lawsuits they would get for helping the government eavesdrop.

http://seattlepi.nwsource.com/national/1151ap_cheney_terrorist_surveillance.html

Citizen arrested for photographing police, ACLU intervenes

Last year in November, an innocent bystander who happened to have a camera and witness a police arrest, decided to take pictures of the event. After he did this, a woman who was an acquaintance of the suspect requested a copy of the photos because she felt the arrest was unjust. The police noticed this happening and asked the man to hand over his camera. Within his rights, the man did not do so, and asked what he had done wrong. Without further notice, the police handcuffed him and took all of his personal possessions, including his camera and wallet. An ACLU attorney handled the case and not only had him acquitted, but awarded eight-thousand dollars from the city claims department and disciplinary action was taken against the officers.

Article found here

Telecom Phone Tapping Challenged

Civil liberty groups around the country are challenging Congress not to renew the Protect America Act.  This act allows warrentless wiretapping which Telecom provide phone service to much of the country.  They have been ambushed from many citizens with lawsuits against them.  Dick Cheney is pressuring congress to pass this bill allowing Telecom to continue wiretapping.

http://www.pcworld.com/article/id,141848-c,privacylegislation/article.html

Police Allowed To Search Teen's Homes Without Warrant

In the city of Boston, Massachusetts police are launching a new program that "will call upon parents in high-crime neighborhoods to allow detectives into their homes, without a warrant, to search for guns in their children's bedrooms." The point behind this program is to help parents who have trouble with their kids by having police officers confront their kids and remove unwanted guns, which will in turn cut down on crime in neighborhoods.


Resource: http://www.boston.com/news/local/articles/2007/11/17/police_to_search_for_guns_in_homes/?page=2

Federal Judge Rules Passphrases Safe From Subpoena

On November 29th, 2007 a Federal Judge in Vermont ruled that Sebastien Boucher could not be compelled to release his PGP key to prosecutors in his child pornography case. US Magistrate Judge Jerome Niedermeier ruled that compelling Boucher to disclose his passphrase would violate his 5th amendment right to not incriminate himself. If the prosecutor decides to appeal, this could be the case that defines what kind of privacy citizens can expect in the digital age.

News.com story

Michigan: No IDs for Illegal Immigrants

The state of Michigan just decided today that Illegal immigrants
cant not have drivers licenses. Only 7 states do not check to see
if a person applying for a license is a illegal immigrants, those
states are: Hawaii, Maine, Maryland, New Mexico, Oregon, Utah
and Washington.

http://www.nytimes.com/2008/01/22/us/22brfs-NOID8217SFOR_BRF.html?_r=1&ref=todayspaper&oref=slogin

Federal Court Protects Access to Abortion Care for Women Prisoners in Missouri

In 2005 Missouri prison officials tried their best to deny a female prisoner’s right to an abortion. The ACLU successfully requested (to a Missouri state court) that the prison be made to transfer the prisoner to a hospital. The State of Missouri tried to ask the US Supreme Court to intervene with the decision, but were quickly shot down. The next year, the ACLU certified a class-action lawsuit supporting equal reproductive rights for Missouri prisoners. Today the Missouri Federal Appeals Court upheld a ruling that Missouri Prison officials may not deny prisoner’s abortion rights.

(link)

Man beaten to death in China for taking pictures

The title pretty much sums it up. The guys name was Wei Wenhua, his only crime was to take a few pictures on his phone. He was a civilian who was witness to a group of city inspectors getting into a confrontation with villagers who were protesting the dump of (I believe nuclear) waste near their homes. When the inspectors became aware of Wei, they proceeded to beat him for 5 minutes. He was D.O.A. at Tianmen hospital. Anywhere from twenty to fifty inspectors were involved in his death. While things can be really shitty in the US, I don't think governemnt officials are in the habit of beating people to death for just taking pictures.

http://www.cnn.com/2008/WORLD/asiapcf/01/11/china.blogger/

well, I'm depressed now.

Homework for Jan 29: Bonus Round

We'll be talking about Brown v Board of Education on the 29th, as a followup to Plessy, but you don't need to do any related prep work in advance.

Instead, find an article about a current (within the last year) story about civil liberties or constitutional law that interests you. Create your own post (not a comment to this one) with a short summary of your article and a link to the full text.

(Sound familiar? We did this before.)

Print a Constitution

For those of you without a laptop in class, please print and bring a copy of the Constitution to future classes. Some choices, all PDF:

• Small print, six pages
• Small but better, nine pages
• Very easy to read, 19 pages

Homework for Jan 22: Plessy v. Ferguson

In 1890, Louisiana passed a statute called the "Separate Car Act", which stated "that all railway companies carrying passengers in their coaches in this state, shall provide equal but separate accommodations for the white, and colored races, by providing two or more passenger coaches for each passenger train, or by dividing the passenger coaches by a partition so as to secure separate accommodations. . . . " The penalty for sitting in the wrong compartment was a fine of $25 or 20 days in jail.

The Plessy case was carefully orchestrated by both the Citizens' Committee to Test the Constitutionality of the Separate Car Act, a group of blacks who raised $3000 to challenge the Act, and the East Louisiana Railroad Company, which sought to terminate the Act largely for monetary reasons. They chose a 30-year-old shoemaker named Homer Plessy, a citizen of the United States who was one-eighth black and a resident of the state of Louisiana. On June 7, 1892, Plessy purchased a first-class passage from New Orleans to Covington, Louisiana and sat in the railroad car designated for whites only. The railroad officials, following through on the arrangement, arrested Plessy and charged him with violating the Separate Car Act. Well known advocate for black rights Albion Tourgee, a white lawyer, agreed to argue the case without compensation.

In the criminal district court for the parish of Orleans, Plessy argued that the Separate Car Act violated the Thirteenth and Fourteenth Amendments to the Constitution.

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Thirteenth Amendment

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Fourteenth Amendment

Section 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

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John Howard Ferguson was the judge presiding over Plessy's criminal case in the district court. He had previously declared the Separate Car Act "unconstitutional on trains that traveled through several states." However, in Plessy's case he decided that the state could choose to regulate railroad companies that operated solely within the state of Louisiana. Therefore, Ferguson found Plessy guilty and declared the Separate Car Act constitutional.

Plessy appealed the case to the Louisiana State Supreme Court, which affirmed the decision that the Louisiana law as constitutional. Plessy petitioned for a writ of error from the Supreme Court of the United States. Judge John Howard Ferguson was named in the case brought before the United States Supreme Court (Plessy v. Ferguson) because he had been named in the petition to the Louisiana Supreme Court and not because he was a party to the initial lawsuit.

Choose at least one of the following questions and answer in the comments:

1. In State of Louisiana v. Plessy, Judge Ferguson decided that the state could choose to regulate railroad companies that operated within the state even though he had previously declared the "Separate Car Act" unconstitutional on trains that traveled through several states. If an act is declared unconstitutional in one case, shouldn't it be held unconstitutional in all cases? How do you think Judge Ferguson could legally justify making this distinction?

2. What rights do the Thirteenth and Fourteenth Amendments provide? Why did Plessy believe that the Separate Car Act violated these rights?

3. Is it possible for two races to remain separated while striving for equality? Are separation and equality compatible? Why or why not?

4. Can you think of an example or situation where separation does not mean inequality?

Homework for Jan 15: McCulloch v Maryland

In 1791, the first Bank of the United States was established to serve as a central bank for the country. It was a place for storing government funds, collecting taxes, and issuing sound currency. At the time it was created, the government was in its infancy and there was a great deal of debate over exactly how much power the national government should have. Some people, such as Alexander Hamilton, argued for the supremacy of the national government and a loose interpretation of its powers, which would include the ability to establish a bank. Others, such as Thomas Jefferson, advocated states' rights, limited government, and a stricter interpretation of the national government's powers under the Constitution and, therefore, no bank. While Jefferson was President, the Bank's charter was not renewed. After the War of 1812, President James Madison determined that the country could utilize the services of a national bank to help fulfill its powers listed in Article I, Section 8 of the Constitution. In response to his suggestion, Congress proposed a Second Bank of the United States in 1816.

President Madison approved the charter and branches were established throughout the United States. Many states opposed opening branches of this bank within their boundaries for several reasons. First, the Bank of the United States competed with their own banks. Second, the states found many of the managers of the Bank of the United States to be corrupt. Third, the states felt that the federal government was exerting too much power over them by attempting to curtail the state practice of issuing more paper money than they were able to redeem on demand.

One state opposed to the Bank of the United States was Maryland. In an attempt to drive the Baltimore branch of the Bank of the United States out of business, the Maryland State Legislature required that all banks chartered outside of Maryland pay an annual tax of $15,000. There was a $500 penalty for each violation of this statute. James McCulloch, cashier of the Baltimore branch of the Bank of the United States, refused to pay the tax.

The State of Maryland took him to court, arguing that because Maryland was a sovereign state, it had the authority to tax businesses within its border, and that because the Bank of the United States was one such business, it had to pay the tax. Luther Martin, one of the attorneys for Maryland, reasoned that because the federal government had the authority to regulate state banks, Maryland could do the same to federal banks. Besides, he argued, the Constitution does not give Congress the power to establish a Bank of the United States. McCulloch was convicted by a Maryland court of violating the tax statute and was fined $2,500.

McCulloch appealed the decision to the Maryland Court of Appeals. His attorneys, who included Daniel Webster, asserted that the establishment of a national bank was a "necessary and proper" function of the Congress. Webster stated that many powers of the government are implied rather than specifically stated in the Constitution. Furthermore, he argued, Maryland did not have the authority to levy the tax, because doing so interfered with the workings of the federal government.

After the Maryland Court of Appeals upheld the original decision against McCulloch, he appealed again. The case was heard by the Supreme Court of the United States, then headed by Chief Justice John Marshall.

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Pick at least a couple of the following questions and post your answers in the comments:

1. What are the advantages for the federal government of establishing a national bank? (See Article I, Section 8 of the U.S. Constitution to determine which functions of Congress might be helped by such a bank.)

2. Why would states feel threatened by a national bank?

3. In your opinion, does the United States government have the authority to establish a national bank? Provide justification for your answer based on the Constitution.

4. If the United States does have authority to establish a bank, does Maryland have the authority to tax that bank? Why or why not?

5. Why do you think the Supreme Court of the United States agreed to hear this case? What larger principles were at stake?

Constitution: Article 1, Section 8

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow Money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of Particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards and other needful Buildings;--And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.