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Published in Print: May 1, 2001, as Judicious Intent

Judicious Intent

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"How would you feel if you couldn't be yourself, if somebody said you couldn't exercise your right to self-expression?"

Jennifer Saubermann, a student at American University's Washington College of Law, in Washington, D.C., is standing in front of a group of seniors in Tom Griffith's government and history class at John F. Kennedy High School. Solemn portraits of the 35th president of the United States look down on the students from the freshly painted cinder block walls of the classroom, part of a brand-new facility in Silver Spring, Maryland.

"Well," Saubermann asks as the Friday morning class settles down, "how would you like that? Give that some thought."

She scans the 15 students seated before her and Jackson Toof, another second-year law student. Working in tandem, Saubermann and Toof are two of 56 student instructors who teach about the U.S. Constitution by using Supreme Court rulings involving students and schools. The novel course—We the Students: Supreme Court Cases for and About Students—is the inspiration of Jamin Raskin, a professor at Washington College of Law, who introduced the elective class in the fall of 1999 to eight public D.C. high schools.

Chosen by Raskin, the law students—known as Marshall-Brennan Fellows (named after the Supreme Court Justices Thurgood Marshall and William Brennan)—pair off and go into some of the most troubled schools in the D.C. region. Using Raskin's textbook, We the Students, teenagers are led through the labyrinth of constitutional democracy. They examine Supreme Court decisions, usually involving the First, Fourth, and 14th Amendments, that touch on their lives: censorship of high school newspapers, search and seizure of students' belongings, random drug-testing, religious prayer in school, book bans, and hate speech among them.

Godlove Ntam, a spirited, quick-witted teenager, speaks up, miffed by the no-hats policy at the high school. "I don't like it at all. Why can't I wear my hats to express myself?" he asks. "It's my way of supporting the school teams. Same with my bandana. But the school says: 'No. That's gang-related paraphernalia.' And that is supposed to be a threat to security."

Steveretha Gonyon jumps in from the other side of the classroom, a 50-50 split of boys and girls representing a range of ethnicities. She feels strongly about her fingernails as a source of self-expression. "They are part of me," she explains. "I'd like to have them long, but the school wouldn't allow it, saying they could be used as a weapon or something. You know, everything could be used as a weapon. How about my pen?"

A din of righteous complaint fills the classroom as Toof goes to the blackboard and writes the words "Kurt vs. Schmidt." In 1972 the Supreme Court ruled that Chesley Kurt, a 16-year-old boy at Coronado High School in El Paso, Texas, had the right to wear his hair long, which the court deemed a form of self-expression and not a safety threat.

"Remember, when it comes to schools," the soft-spoken Toof says, returning to his seat atop a vacant desk, "it's a balancing act between your First Amendment rights and an administration's right, and responsibility, to safeguard students. That's the ongoing tension that the Supreme Court addresses: When is a school administration stepping on the rights of students in the name of school safety and order, and when is it within its rights?"


The rights of high school students came to Jamin Raskin's attention in 1997 when he heard that officials at nearby Blair High School had censored a student cable-TV show, Shades of Gray, featuring a debate on the pros and cons of gay marriage. Raskin, representing the students in a lawsuit, got the censorship reversed—and discovered that teenagers were fascinated by the legal process. Then, realizing that an examination of Supreme Court cases affecting high school students would serve as a tremendous teaching tool, he decided to write a textbook.

"Why not teach high school students about the Constitution through the cases that affect them directly?" says Raskin, 38. "We know they are going to be interested, and they should know. And it's a great way to introduce them into the world of law, politics, and history."

Those enrolled in We the Students gravitate toward Supreme Court cases involving the First Amendment (freedom of speech), a fixture in high schools, where debates rage over provocative clothing, the content of students' personal Web sites, and organized prayer on school grounds, among other issues. Recognizing the inherent popularity of such material, Raskin began his eminently readable textbook, full of imaginative exercises and projects, with First Amendment cases. We the Students then proceeds to examine issues involving the Fourth (unreasonable searches and seizures), the Eighth (cruel and unusual punishment); and the 14th (due process and equal protection under the law) amendments.

"We the Students is a way to uplift the character of conflict in these schools," says Raskin, who, after graduating from Harvard Law School, served as an assistant attorney general for Massachusetts. "Kids can express themselves with this new language and siphon some of the anger that accompanies controversy. Those administering the class don't see ourselves as whistle-blowers; we are not teaching students how to go out and sue. We just try to raise the constitutional consciousness of the community. As we constantly point out to students, every time we have the right to something, we have a corresponding responsibility to respect the rights of others."

Supreme Court cases involving the 14th Amendment, in particular, provoke lively debate among students who see the repercussions of the rulings in their daily school lives. Since the Columbine tragedy two years ago, high school administrations, in the name of security, have adopted "zero tolerance" policies toward student transgressions—or the perception of them. By suspending students without explanation or hearing, they violate student rights protected under the 14th Amendment, according to Raskin.

A former general counsel for Jessie Jackson's Rainbow Coalition, Raskin believes that the Supreme Court's interest in student rights hit its peak with two decisions. West Virginia State Board of Education vs. Barnette (1943) ruled that students didn't have to recite the Pledge of Allegiance. Tinker vs. Des Moines Independent Community School District (1969) determined that students could wear political armbands to school as long they didn't disrupt the learning process.

"The first case disallowed schools from imposing a standard of political correctness," says Raskin. "The second acknowledged that children are part of the education process. These were like the Emancipation Proclamation for student rights. Since then, however, it's been a slow downhill slide. The pattern, now familiar, is that the law recognizes that students—in theory—have rights, but they have been watered down significantly by the Supreme Court, which defers to the authority of school administrators."

Student rights hit a low point a year ago when William Hite, the principal of Highland Springs High School in Virginia, suspended science teacher Liz Armstrong, who was later fired by the Henrico County school board. After Hite and administrators had conducted a "random search" of students and their belongings in her 10th grade biology class, Armstrong objected in a letter to the principal. (The search, involving the use of metal detectors, produced no illegal drugs or weapons.) Principal Hite, however, said Armstrong violated "effective use of instructional time" by talking about the search with students after the unsettling event took place.


On a rainy Friday in March, the Armstrong incident is the basis for a fictitious lawsuit in Matt Johnson's history and government class at Benjamin Banneker High, a magnet school in an aging facility located in the heart of the district. Bruce Cork and Theresa Steed, second-year law students at American University, are preparing the class for a moot court competition, a simulated legal proceeding in which the kids act as attorneys in making arguments before a judge. It's part of their final exam, which also requires students to complete a written essay and participate in either creative arts or T-shirt-making competitions.

Twenty-three students are seated in a large circle and talk with one another like seasoned litigators. No longer given to the emotional outbursts of righteous teenagers, they present their arguments in the newly adopted language of legalese.

"Let's go through the briefs, not the case summaries, to look at the best arguments," says Cork, who stands by the blackboard, outside the circle. "Whether you are the petitioner or the respondent, you have to know the other side's argument to see whether it can help or hinder you."

Asia Carter, a senior, zeroes in on the premise of the state's argument in the lawsuit, pointing out that Armstrong wasn't disruptive in talking to her students; it was the administration's search that caused problems. A murmur goes up. Steed, Cork's sidekick, is seated among the students. "What if Ms. Armstrong had ordered her students to take to the halls and protest?" she asks.

"In making your argument during the moot court, give the strongest part of it first," says Jodi Weiler, a guest speaker who has joined the fellows to coach students in preparing for court. "If you are asked questions and run out of time, you don't want the best part of your case left out. Also, after answering the questions, get back to the points you want to make. This is key."

Other students begin to pepper the instructors with questions, but the bell rings, ending class before there's a satisfactory airing of explanations. Later, during his drive back to American University, Cork says: "Usually, there's lots of classroom discussion like that. Often, we just get out of their way and only jump in to keep the conversation on the right course. When they are really interested in a case, we sometimes spend days on it, even though Theresa and I thought we could cover the material in one class."

"I love it," says Steed. "I think Bruce and I were concerned at first with filling the time. But the kids have so much to say. They really get into it."


For everyone involved, We the Students has exceeded expectations. Before they enrolled, though they lived within the shadow of the nation's capital, many students knew little about the federal government or notions such as the separation of powers and their legal right to a generous body of civil liberties. Now, however, they're learning about democracy in the United States from its source, the Constitution, and how interpretations of the document and its principles have a palpable bearing on their lives.

Moreover, the give-and-take format of the course challenges students to think logically, present their arguments cogently, and respect opposing points of view. And during the process of debate, they receive a primer in American history, which isn't presented as a cascade of facts and names to memorize. The Constitution is no longer an abstract ideal, administered by remote, unknowable institutions. It's theirs.

"Like lots of urban school systems, many D.C. schools are in trouble," says Raskin. "They need help. There is a shortage of teachers and hope. We think we have a role to play, and the kids feel empowered by the experience."

The Marshall-Brennan Fellows are changed students, too. Before being chosen by Raskin, they had an intellectual grasp of constitutional law and the Supreme Court justices' decisions, which they often filtered through their own liberal political philosophies. They therefore started off as zealous champions of the high school students from whom they gained a more subtle understanding of the cases during class debate. Yet, in supervising classes in urban high schools, the fellows have come to appreciate administrators' points of view, realizing the need for discipline to foster learning in challenging environments.

As students themselves, however, the fellows empathize with the teenagers, who, in turn, consider the teachers comrades, to some extent. Many fellows have taken a personal interest in the high school seniors, helping them apply to colleges and arrange internships. In fact, the experience has been so rewarding for some fellows that they plan to return for a second year, teaming with new law students.

"Many kids living in the inner city have a hostility toward law enforcement," says Michelle Carhart, program administrator of We the Students. "If the teachers are able to change that attitude by giving students a feeling of empowerment, a sense of hope, by teaching them their rights, then we've succeeded."

Completing its second year, We the Students was offered in 20 classes in 16 public high schools, the majority of them in D.C. This fall, Raskin wants to see We the Students grow to 30 classes, including more in nearby Montgomery County schools. The American Bar Association and the Association of American Law Schools have called on law schools nationwide to initiate similar programs. Meanwhile, Raskin has received a grant, with others pending, from the Naomi and Nehemiah Cohen Foundation that will enable teachers from across the country to travel to American University for a 40-hour instructional seminar on how to teach We the Students at their own high schools.

A big proponent of Raskin's efforts is Kenneth Starr, who volunteers at the district's Anacostia High School as an instructor. The former independent counsel also created a program of class trips to the Supreme Court, and he arranges internships. Initially, many law students had deep reservations about Starr's participation in We the Students, but his enthusiasm for the course changed many minds—which Raskin is pleased to see.

"It would contradict the spirit of our teaching if we were to exclude somebody because of his politics or past political commitments," he explains. "The philosophy is that the Constitution belongs to everybody. The Constitution is, first and foremost, the people's Constitution. And that's what we teach: Students are part of the sovereign constitutional community of America."


David W. Major is editor in chief of New Jersey Life magazine.

Vol. 12, Issue 8, Pages 14-18

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