Ninth Circuit Rules on Free Speech Issue in Schools

clip_image002Late last month, in Dariano v. Morgan Hill Unified School District, the Ninth Circuit held that the Principal of Live Oak High School properly exercised the school’s rights when he offered students wearing T-shirts bearing the American Flag on Cinco de Mayo the choice to either turn their shirts inside out or go home for the day.  The Principal’s action came on the heels of threats of violence from Mexican-American students earlier in the day and the occurrence of a slight physical altercation on Cinco de Mayo 2009.  The students were not disciplined in any way for their decisions to go home rather than turn their shirts inside out.

The court rested its decision on the First Amendment challenge made by the students on the 1969 Supreme Court case Tinker v. Des Moines Independent Community School District, 393 U.S. 503.  In Dariano, the Ninth Circuit applied Tinker to find that the school could restrict student speech based upon officials’ reasonable belief that the T-shirts would cause a “material and substantial” disruption in school activities.  The Ninth Circuit distinguished the facts of Dariano from those of Tinker by finding that in Tinker, there was no threat of disruption from the wearing of the armbands, whereas there were actual threats of violence throughout the day at Live Oak High School.

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Hallows Lecture Examines Little Noted, but Pivotal Civil Rights Decision

“Remarkable but relatively obscure” – that’s how Judge Paul T. Watford of the United States Court of Appeals for the Ninth Circuit described the 1945 U.S. Supreme Court decision, Screws v. United States. In presenting Marquette Law School’s annual Hallows Lecture on March 4, Judge Watford aimed to lift the decision from some of its obscurity and increase awareness of “the birth of federal civil rights enforcement,” as the title of his lecture put it.

The case began with the vicious and fatal beating of Robert Hall, an African-American man, by M. Claude Screws, the sheriff of Baker County, Ga., and two of Screws’ deputies. Judge Watford said the circumstances of Hall’s death provide a window into how African Americans of that era had to live with the “ever-present reality” of unwarranted violence against them by white law enforcement officers. Even given the many witnesses to Hall’s death, Georgia authorities declined to prosecute Screws and his deputies. But, in what Watford described as an unusual development for that time, a federal indictment was issued against them for violating Hall’s civil rights.

Ultimately, a splintered Supreme Court did not do all that civil rights advocates would have wanted, but the justices upheld the application in situations such as this of 18 U.S.C. § 242, prohibiting violation of civil rights by someone acting under the color of law. The majority of justices rejected the argument that civil rights violations were a matter to be left to the states, although no single opinion commanded a majority.

“Had Screws come out the other way, and been decided against the federal government, federal civil rights enforcement would have been stifled,” Watford said. “Instead, it was given new life, and that helped change the course of history, particularly in the South, in the second half of the twentieth century.” 

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NAAC Team Advances to Octofinals

IMG956734After three rounds of oral argument at the National Appellate Advocacy Competition (NAAC) regional in Brooklyn, New York, this weekend, Marquette University Law School students Michael Crane (3L), and Samantha Evei (3L) were 2-1 and seeded thirteenth out of 33 teams.  Crane and Evei advanced to the octofinals, but unfortunately lost a very close match to another team. Sam Berg (3L) was also a member of the team and wrote the team’s brief. Attorneys (and former NAAC competitors) Alyssa Dowse and Lindsey Greenawald coached the team.

Michael Beckman (3L) and Zachary Wittchow (3L) also competed in the Brooklyn regional, facing tough competition.  Their team was coached by attorneys Jesse Blocher and Michael Cerjak. Professor Lisa Mazzie is the faculty advisor for both teams.

The NAAC is sponsored by the American Bar Association Law Student Division.

 

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