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October 1945 as a replacement for Owen J. Rob-

erts (resigned July 1945).

Stone’s appointment came shortly before the

entry of the United States into World War II. The

Stone Court’s decision overturning California’s

“anti-Okie” law enforced the constitutional right

of people to move from state to state. Edwards v.

People of State of California, 314 U.S. 160 (1941),

thus allowed Edwards to bring his unemployed

brother-in-law to California from Texas.

With the entry of the United States into World

War II, the Stone Court would be forced to deal

with cases involving spies, Japanese detention, mar-

tial law, civil liberties, and other issues. The

spy and treason cases arose in Ex parte Quirin,

317 U.S. 1 (1942). Eight German spies, who had

lived for years in the United States before return-

ing to Nazi Germany, had been captured trying to

conduct Operation Pastorius, which if successful

would have demolished a number of installations

in the United States. They were tried as unlawful

enemy combatants, the status given to spies, and

were all condemned to death by a military com-

mission, authorized by President Roosevelt, that

met in secret. Six were executed (August 8, 1942),

and the death sentence was commuted to life in

prison for the other two.

Arising out of Ex parte Quirin was a review of

the treason conviction of Anthony Cramer, who

had previously known and had brief contact with

two of the executed Nazi spies. His conviction was

overturned in the ﬁ rst review in history of a trea-

son conviction by the Supreme Court, Cramer v.

United States, 325 U.S. 1 (1945).

Criminal civil rights for indigent defen-

dants in noncapital cases were limited in B

ETTS V.

BRADY, 316 U.S. 455 (1942). That year the Court

also decided that sterilization could not be used

by the states as a form of punishment (SKINNER V.

OKLAHOMA, 316 U.S. 535 [1942]).

In 1943 and 1944, the Stone Court upheld

the removal of Japanese-American citizens in

Hirabayashi v. United States, 320 U.S. 81 (1943),

and their internment in KOREMATSU V. UNITED

STATES, 323 U.S. 214 (1944), although the latter

decision was issued by a divided court. The same

day Korematsu was issued, the Court allowed

Mitsuye Endo, a Japanese American deemed

to be a loyal citizen, to return to California in

Ex parte Mitsuye Endo, 323 U.S. 283 (1944),

thereby signaling that the Court was changing its

views.

The scope of martial law and military tribunals

was also clariﬁ ed in Duncan v. Kahanamoku, 327

U.S. 304 (1946). It added clarity to the ruling in

EX PARTE MILLIGAN, 71 U.S. 2 (1866), which had

sought to limit the executive authority of President

Abraham Lincoln.

Other wartime decisions regarding civil lib-

erties included several Jehovah’s Witnesses. In

Chaplinsky v. State of New Hampshire, 315 U.S.

586 (1942), the Stone Court ruled that “fight-

ing words” used by a Jehovah’s Witness street

preacher could be a justiﬁ cation for limiting free-

dom of speech. However, in the Jehovah’s Witness

ﬂ ag saluting case of West Virginia State Board of

Education v. Barnette, 319 U.S. 642 (1943), the

ruling issued on June 14, Flag Day, rejected the

claim that compelling the saluting of the Ameri-

can ﬂ ag promoted national unity.

The next year the Stone Court outlawed white

primaries in Smith v. Allwright, 321 U.S. 649

(1944). The case was a harbinger of the desegre-

gation decisions to come after the war as well as

voting rights cases.

The commerce clause of the Constitution

was the subject of many cases. Of landmark sig-

niﬁ cance was WICKARD V. FILBURN, 317 U.S. 111

(1942). The decision allowed the broadest appli-

cation of the commerce clause when it ruled that

the Agricultural Adjustment Act of 1938 could be

used to order a farmer to plow under and not to

consume wheat in excess of his allotment, even if

the wheat were only for the personal consumption

of his family.

On May 10, 1943, the Court ruled in National

Broadcasting Co. v. United States, 319 U.S. 190

(1943), that the Federal Communications Com-

mission could issue regulations that governed

radio stations that formed into broadcasting net-

works. The case was an important interpretation

of the constitutional authority of Congress to set

up regulatory agencies and for the agencies to

develop administrative law.

702 Stone Court

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For more information: Douglas, William O.

Harlan Fiske Stone: Chief Justice of the United

States. New York: Columbia University Press,

1946; Konefsky, Samuel Joseph. Chief Justice

Stone and the Supreme Court. New York: Macmil-

lan, 1946; Renstrom, Peter. The Stone Court: Jus-

tices, Rulings, and Legacy. Santa Barbara, Calif.:

ABC-CLIO, 2001; Urofsky, Melvin L. Division

and Discord: The Supreme Court under Stone

and Vinson, 1941–1953. Columbia: University of

South Carolina Press, 1999.

—Andrew J. Waskey

Stone v. Powell 428 U.S. 465 (1976)

In a 6-3 decision, the Supreme Court in Stone v.

Powell reversed a ruling from the Ninth Circuit

Court of Appeals and rejected habeas corpus

petitions from prisoners Lloyd Powell and David

Rice, who had claimed Fourth Amendment vio-

lations. The case is important for its ruling on when

the federal courts will review a state conviction.

Powell alleged that he had been arrested on the

basis of an unconstitutional California vagrancy

statute and that the evidence used to convict

him of murder, a revolver, was seized incident

to an unlawful arrest. In a companion case from

Nevada, Rice argued that materials used in mak-

ing explosive devices, cited in the case against him,

were found as the result of an illegal search based

on a defective warrant. The Court held that if a

state provides full and fair litigation of a Fourth

Amendment claim, a prisoner may not be granted

federal habeas corpus relief when evidence from

an unconstitutional search and seizure was intro-

duced at his trial. The decision created almost

insurmountable limitations on the ability of defen-

dants to cite breaches of the exclusionary rule

as grounds for a federal writ of habeas corpus.

In previous cases, including Kaufman v. United

States, 394 U.S. 217 (1969), the Court had implied

that if a prisoner was convicted in state court on the

basis of an illegal search or seizure, such a violation

of the Fourth Amendment was grounds for federal

habeas corpus relief. But in Stone v. Powell, the

justices retreated from that position. The major-

ity, Justices Lewis Powell, Stewart, Blackmun,

William Hubbs Rehnquist, John Paul Ste-

vens, and Chief Justice Warren Burger, stated

that the principal purpose of the exclusionary rule

was to prevent improper conduct by the police. Law

enforcement officers would presumably refrain

from unlawful conduct if they knew that evidence

improperly obtained would be tossed out at trial.

However, the attenuated process of waiting until a

federal court granted a habeas petition would have

little or no deterrent on police behavior.

The Court expressed further reservations about

the exclusionary rule when it stated that its appli-

cation often diverted courts from their major task,

an accurate determination of guilt or innocence.

They warned that “indiscriminate application” of

the rule would undermine the public’s respect for

the law by allowing too many guilty people to go

free. In a concurring opinion, Chief Justice Burger

went further by arguing that the exclusionary rule

was used to prohibit reliable evidence and led to

“bizarre miscarriages of justice.” He would see its

use drastically reduced to exclude only “egregious,

bad-faith conduct.”

Two dissenters, Justices William J. Brennan,

Jr., and Marshall, feared that the decision would

eviscerate Fourth Amendment protections. They

argued that the guarantees against unreasonable

searches and seizures were not second-class con-

stitutional rights, but that any constitutional error

by the state courts could be grounds for federal

habeas corpus. The dissent prophesied that a major

result of Stone v. Powell would be that denials of

Fourth Amendment rights in state courts would

go unreviewed, and that the potential ramiﬁ ca-

tions of the case for federal habeas jurisdiction,

when other constitutional rights were concerned,

were “ominous.”

For more information: LaFave, Wayne R., Jer-

old H. Israel, and Nancy J. King. Criminal Proce-

dure. St. Paul, Minn.: Thomson/West, 2004.

—Mary Welek Atwell

stop and frisk

“Stop and frisk” refers to a procedure employed by

law enforcement ofﬁ cers when they have reason to

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believe that an investigation is needed, which has

been recognized by the United States Supreme

Court as an exception to the Fourth Amend-

ment’s search warrant requirement. This proce-

dure is also referred to as a “protective pat-down

search,” a “pat down for weapons,” or a “Terry stop

and frisk,” based on the Supreme Court decision

in T

ERRY V. OHIO, 392 U.S. 1, 19 (1968).

A law enforcement ofﬁ cer who has a reason-

able suspicion that a person is involved in criminal

activity may brieﬂ y detain that person in order to

investigate his suspicion. If the ofﬁ cer has reason

to believe that the person is armed or dangerous,

or poses a threat to the safety of the officer or

bystanders, the ofﬁ cer is permitted to pat down

the outside of the person’s clothing to search for

concealed weapons. Under these circumstances,

the ofﬁ cer is not required to get a search warrant

before conducting the stop and frisk. However, the

search must be conducted in a reasonable manner.

If the ofﬁ cer detects a weapon while frisking the

person, the ofﬁ cer may disarm the person. If the

ofﬁ cer detects contraband during the pat-down

search, the ofﬁ cer may seize the contraband.

In Terry v. Ohio, 392 U.S. 1 (1968), the United

States Supreme Court approved this procedure

and established a test for evaluating future stop

and frisk procedures on a case-by-case basis.

Terry involved an undercover police ofﬁ cer who

observed two men alternately walk by a store win-

dow, peer inside, and then confer with each other.

They repeated this behavior ﬁ ve or six times, and

then they conferred with a third man. Convinced

that the men were “casing” the store in prepara-

tion for a robbery, the ofﬁ cer suspected they were

armed with concealed weapons and decided to

investigate. He approached the three men, iden-

tified himself, and asked for their names. After

receiving mumbled responses, the ofﬁ cer grabbed

one of the men, Mr. Terry, spun him around, and

patted down the outside of his clothes. He felt a

handgun and reached into Mr. Terry’s pocket to

remove it. Mr. Terry was charged with carrying

a concealed weapon, and the pistol was used as

evidence against him at trial.

The Fourth Amendment to the Constitution

of the United States provides that “[t]he right of

the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches

and seizures, shall not be violated, and no War-

rants shall issue, but upon probable cause.” The

United States Supreme Court granted review of

Mr. Terry’s case to answer the question of whether

the stop and frisk procedure violated the Fourth

Amendment’s prohibition of unreasonable searches

and seizures. To answer that question, the Court

decided that the reasonableness of the search was

best determined by balancing the police ofﬁ cer’s

interest in conducting the search against the

degree of invasion inflicted by the search. The

Court also stated that the frisk must be justiﬁ ed

under the circumstances before being conducted

and that the frisk could be no more intrusive than

justified. Accordingly, the Court balanced the

reasonableness of the ofﬁ cer’s reasons for frisk-

ing the suspect and the manner in which the frisk

was carried out. Ultimately, the Supreme Court

approved of the frisk of Mr. Terry because the

ofﬁ cer was reasonable in his belief that Mr. Terry

and his associates were about to commit a crime,

that they were likely to be armed with concealed

weapons, and that they posed a threat to the safety

of others. The Court also approved of the frisk

because it was conducted in a very limited fashion,

was performed only to discover weapons, and was

not performed as a general search for evidence of

criminal activity.

After the Terry decision, a stop and frisk is per-

missible under the Fourth Amendment so long as

the ofﬁ cer has reasonable grounds for frisking the

suspect and the ofﬁ cer limits the frisk to a search

for weapons. In 1993, the Supreme Court further

clariﬁ ed the constitutionality of the stop and frisk

in the case of MINNESOTA V. DICKERSON, 508 U.S.

366 (1993). Under the “plain feel” doctrine, a law

enforcement ofﬁ cer may seize any other contra-

band—usually illegal drugs or drug parapherna-

lia—detected during a legitimate pat-down search

for weapons. However, for the seizure of the con-

traband to be valid under the Fourth Amendment,

its illegal character must be immediately apparent

to the ofﬁ cer based upon its contour or mass. Thus,

an ofﬁ cer is not allowed to manipulate the object

with his fingers in order to determine whether

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the object is contraband. If the object is obviously

not a weapon and is not obviously contraband of

another sort, the ofﬁ cer is not permitted to inves-

tigate further. If the ofﬁ cer goes beyond a super-

ficial pat-down of the suspect’s outer clothing,

the frisk is constitutionally unreasonable, and the

object will not be allowed to be used as evidence

at the suspect’s trial.

For more information: Bloom, Robert M.

Searches, Seizures, and Warrants: A Reference

Guide to the United States Constitution. West-

port, Conn.: Praeger, 2003; Hubbart, Phillip

A. Making Sense of Search and Seizure Law: A

Fourth Amendment Handbook. Durham, N.C.:

Carolina Academic Press, 2005.

—Mark A. Fulks

Story, Joseph (1779–1845) Supreme Court

justice

Joseph Story was nominated to sit as an associ-

ate justice on the Supreme Court of the United

States in 1811. He was 32 years old, and to this day

remains the youngest person ever appointed and

one of its longest-serving justices. While he was

not President James Madison’s ﬁ rst choice to ﬁ ll

that particular vacancy on the Court, he nonethe-

less went on to become one of its most preeminent

judges and one of the most famous scholars of the

Constitution. His opinions and scholarly writings

are still carefully studied and debated, and con-

tinue to contribute to the rich fabric of American

jurisprudence.

Born in Massachusetts in 1779, Story attended

Harvard College and then studied law. Prior to

his appointment to the Court, he served in both

the Massachusetts legislature and the U.S. House

of Representatives. While serving on the

Supreme Court, he was also appointed Dane Pro-

fessor at the Harvard Law School in 1829. He held

both positions until his death in 1845, and was

held to be a great teacher, scholar, and jurist.

Story was a conservative New Englander who

believed in the need for a strong national govern-

ment. He was a steadfast supporter and ally of

Chief Justice John Marshall and an opponent

of slavery. Agreeing with Marshall’s federalist view

of the founding, Story’s interpretation of the Con-

stitution emphatically rejected the “states’ rights”

view that the United States was a compact of sov-

ereign states. His legal scholarship was extensive,

and he is often referred to as “the Blackstone of

the American Constitution.” His various commen-

taries on the Constitution remain to this day as

one of the authoritative sources of American con-

stitutionalism and the conceiving of the original

intent of the framers of the Constitution.

Story was the author of three of the Supreme

Court’s most famous decisions: MARTIN V. HUNTER’S

LESSEE, The Amistad, and Prigg v. Pennsylvania.

In the ﬁ rst case, Story successfully asserted the

power of the Supreme Court to decide on appeal

cases decided by a state supreme court, and to

overturn their decisions. Such a decision was nec-

essary if the United States was to have a uniform

interpretation of state laws under the Constitu-

tion. In the Amistad and Prigg cases, the Court

was forced to deal with the issue of slavery and the

interpretation of the Constitution with respect to

the legality of slavery. In the Amistad case, Story

successfully argued that the law of the United

States prohibited the importation of slaves, and

hence the Africans being transported on the cap-

tured slave ship Amistad were free persons. In the

latter case, Story upheld the right of slave owners

to have fugitive slaves returned to them even if

the slave had escaped to a state in which slavery

had been outlawed. While Story was opposed to

slavery, he also reluctantly conceded that the Con-

stitution recognized its existence and it thus fell

under the jurisdiction of state law. Story unfortu-

nately did not live long enough to see the passage

of the Thirteenth Amendment in 1865, which

outlawed slavery from the entire United States.

For more information: McClellan, James.

Joseph Story and the American Constitution: A

Study in Political and Legal Thought. Norman:

University of Oklahoma Press, 1990; Newmeyer,

R. Kent. Supreme Court Justice Joseph Story:

Statesman of the Old Republic. Chapel Hill:

University of North Carolina Press, 1985; Schot-

ten, Peter. “Joseph Story.” In American Political

Story, Joseph 705

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Thought. 2d ed. Itasca, Ill.: Peacock Publishers,

1983; Story, Joseph. A Familiar Exposition of The

Constitution of the United States. Lake Bluff, Ill.:

Regnery Press, 1986.

—Patrick Malcolmson

strict constructivism

Strict constructivism is a theory of constitu-

tional interpretation according to which

provisions of the U.S. Constitution are construed

in accordance with their meaning at the time the

Constitution was drafted. This theory of interpre-

tation focuses on the words of the Constitution in

order to determine what its clauses and amend-

ments mean. In essence, strict constructivism

calls for a narrow and measured interpretation of

the Constitution.

Generally, the debate over constitutional inter-

pretation is between two theories: strict construc-

tivism and interpretivism. Strict constructivism,

which is also called originalism and textualism,

looks primarily to the text of the Constitution to

deﬁ ne the rights of the people and the role of the

government. When the text alone is insufﬁ cient,

strict constructivism may consider the context in

which the Constitution was drafted and the history

and traditions that preceded and followed it. Nev-

ertheless, the history and traditions are allowed

only to guide the interpretation to clearly implicit

principles and protections. Under this theory, con-

stitutional rights are not inferred or derived from

the text to address modern issues. Rather, mod-

ern issues are viewed as being either within the

scope of the original protections afforded by the

Constitution or outside of them. If an issue falls

outside the text of the Constitution, it is left to the

people to amend the Constitution to conform to

modern society or to enact legislative remedies

when permissible. According to strict constructiv-

ism, it is not within the province of judges to ﬁ ll

in the gaps based upon their own creative sense of

justice and democracy. Instead, this theory posits

that the only reliable understanding of the Consti-

tution comes from the expressed intentions of the

Founding Fathers, which are found in the text of

the Constitution and can be understood through

consideration of the history and traditions that

guided them and those who followed.

The primary goal of strict constructivism is

a consistent theoretical framework for constitu-

tional interpretation. However, it is also focused

on eliminating bias, activism, and vigilance from

the legal system by requiring judicial restraint

instead. The Constitution is the written embodi-

ment of the rule of law that governs society and,

according to strict constructivism, the rule of law

is undermined when judges stray from the original

meaning of the text.

On the other side of the debate, interpretivism

views the Constitution as a living document that

establishes general principles rather than speciﬁ c

rules. From this view, the Constitution should be

interpreted as needed to achieve justice and to

resolve social problems and political issues. Judges

are not constrained by the text of the Constitu-

tion or the history and traditions of the country.

Moreover, interpretivism rejects the view that the

Constitution has one meaning. Instead, judges

are empowered to be creative in making consti-

tutional law, guided by the spirit of the Constitu-

tion and the values it expresses. For example, the

interpretivist views the Constitution as protecting

human dignity and personal freedom in a broad

sense and seeks to advance those values through

constitutional interpretation. Accordingly, the

Constitution is seen as adaptable to modern times,

rather than being ﬁ xed in time.

The clash between these two theories of consti-

tutional interpretation most often plays itself out

in debate over the scope of individual autonomy

protected by the Constitution. A judge adhering

to the theory of strict constructivism may look

at claims of a right to privacy with some skepti-

cism because the text of the Constitution does not

expressly grant such a right. Instead, such a judge

would look to the explicit rights and protections

granted to citizens as well as the scope of author-

ity granted to the federal government in order to

resolve issues of privacy. If the text of the Consti-

tution does not resolve the matter, a judge abiding

by strict constructivism may view the issue as one

more amenable to resolution in the U.S. Congress

or at the state level.

706 strict constructivism

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In contrast, a judge of an interpretivist mindset

may look at the protections speciﬁ cally granted

by the Constitution and glean a general principle

of privacy that extends beyond the explicit rights

set forth in the Constitution. Then, when applying

that general principle to a speciﬁ c case, the inter-

pretivist judge may extend constitutional rights

that are not explicitly stated in the Constitution

and had not been recognized previously. Thus, the

outcome of the case depends upon the interpre-

tive creativity of the judge as well as the judge’s

personal sense of justice. Although interpretivism

will have resolved the case, strict constructivism

will decry the uncertainty injected into the justice

system as a result.

In the final analysis, interpretivism favors a

more creative approach that emphasizes gen-

eral constitutional principles and case-by-case

pragmatic results. On the other hand, strict con-

structivism emphasizes speciﬁ cally deﬁ ned con-

stitutional rights and consistent results in similar

cases.

For more information: Breyer, Stephen. Active

Liberty: Interpreting our Democratic Constitu-

tion. New York: Alfred A. Knopf, 2005; Scalia,

Antonin. A Matter of Interpretation: Federal

Courts and the Law. Princeton, N.J.: Princeton

University Press, 1997.

—Mark A. Fulks

strict scrutiny

Strict scrutiny is the most intense standard of

judicial review for a challenged policy or

law. The strict scrutiny standard is based on the

equal protection clause of the Fourteenth

Amendment and is applied based on the consti-

tutional conﬂ ict at issue, regardless of whether a

law or action of the federal government, a state

government, or a local municipality is at issue.

Federal courts use strict scrutiny to determine

whether certain types of government policies are

constitutional. The United States Supreme Court

has applied this standard to laws or policies that

impinge on a right explicitly protected by the Con-

stitution, such as the right to vote. The Court

has also identiﬁ ed certain rights that it deems to

be fundamental rights worthy of protection,

including the right to travel and the right to pri-

vacy, even though they are not enumerated in the

Constitution.

The strict scrutiny standard is one of three

employed by the courts in reviewing laws and

government policies. The other standards are: the

rational basis test, which is the lowest form

of judicial scrutiny, with great deference given to

the legislative branch; and the heightened scrutiny

test, which is used in cases involving matters of

discrimination based on sex.

Under the strict scrutiny standard, the courts

presume the policy to be invalid unless the gov-

ernment can demonstrate a compelling interest

to justify the policy. In other words, to withstand

strict scrutiny, the government must show that its

policy is necessary to achieve a compelling state

interest. While the courts have never deﬁ ned how

to determine whether an interest is compelling,

the concept generally refers to something neces-

sary or crucial, as opposed to something merely

preferred. This requires proof that the law is the

least restrictive or least discriminatory alternative.

If the law is not the least restrictive alternative,

then it is not “necessary” to accomplish the end.

Examples include national security, preserving

the lives of multiple individuals, and not violating

explicit constitutional protections.

Second, the law or policy must be “narrowly

tailored” to achieve that goal or interest. If the

government action encompasses too much or fails

to address essential aspects of the compelling

interest, then the rule is not considered narrowly

tailored.

Finally, the law or policy must be the least

restrictive means for achieving that interest. More

accurately, there cannot be a less restrictive way

to effectively achieve the compelling govern-

ment interest; however, the test will not fail just

because there is another way that is equally the

least restrictive.

The impetus for the strict scrutiny standard

came from Supreme Court Justice Harlan Fiske

Stone’s famous footnote four in the case

United States v. Carolene Products Co., 304 U.S.

strict scrutiny 707

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144 (1938). Justice Stone identiﬁ ed legislation that

might not merit deference toward constitutional

validity and under which a more exacting judicial

scrutiny might be warranted. He wrote: “prejudice

against discrete and insular minorities may

be a special condition . . . which may call for a cor-

respondingly more searching judicial inquiry.”

Since Carolene Products, laws or practices that

draw distinctions on the basis of race or national

origin are inherently suspect and subject to strict

scrutiny. In C

ITY OF RICHMOND V. J.A. CROSON CO.,

488 U.S. 469 (1989), the Supreme Court held that

all laws that discriminate on the basis of race are

subject to strict scrutiny under the equal protec-

tion clause of the Fourteenth Amendment, includ-

ing laws that discriminate against whites. While

the Court applies strict scrutiny to test all racial

classifications, it was noted in GRUTTER V. BOL-

LINGER, 123 S. Ct. 2325 (2003), that such “scrutiny

is not ‘strict in theory, but fatal in fact.’ . . . When

race-based action is necessary to further a com-

pelling governmental interest, such action

does not violate the constitutional guarantee of

equal protection so long as the narrow- tailoring

requirement is also satisfied.” One example is

the Supreme Court’s widely criticized opinion in

KOREMATSU V. UNITED STATES, 323 U.S. 214 (1944),

upholding as constitutional the internment of Jap-

anese Americans during World War II.

The strict scrutiny standard is also applied to

many classiﬁ cations drawn on the basis of alienage

and to classiﬁ cations that bear on the exercise of

a fundamental right. While the mode of analysis

is the same in all these areas, the strict scrutiny

standard is applied with special rigor in cases that

involve race or national origin.

For more information: Nowak, John E., and

Ronald D. Rotunda. Principles of Constitutional

Law. St. Paul, Minn.: Thomson/West, 2005.

—Randy W. Hagedorn

student activity fees

The collection and allocation of student activity

fees raises several important constitutional ques-

tions involving the free speech, freedom of asso-

ciation, and establishment provisions of the First

Amendment.

More than 70 percent of public colleges and

universities impose mandatory student fees to

help fund programs and activities that beneﬁ t the

students. A portion of the money generated from

these fees is distributed to various student groups

on campus, usually by a committee within student

government.

The Supreme Court ﬁ rst addressed the issue

of mandatory student activity fees in the case of

ROSENBERGER V. RECTOR AND VISITORS OF THE UNI-

VERSITY OF VIRGINIA, 515 U.S. 819 (1995). Rosen-

berger, a student at the university, sought funding

from the Student Activity Fund (SAF) for publica-

tion of a Christian magazine by Wide Awake Pro-

ductions. The university argued that the magazine

was a religious activity and that it had a compel-

ling interest to deny funding in order to comply

with the establishment clause.

In Rosenberger, a divided Supreme Court held

that the denial of funds for the religious publica-

tion was unconstitutional viewpoint discrimina-

tion. Justice Anthony M. Kennedy’s majority

opinion emphasized free speech over the establish-

ment clause concerns. He concluded that the SAF

constituted a limited public forum and that the

student publication was denied funding because

of its religious viewpoint. Kennedy said that fund-

ing the publication would not advance religion and

that the government program was neutral toward

religion. In a concurring opinion, Justice Sandra

Day O’Connor noted that numerous student

groups received funding, and she suggested that

no reasonable person would perceive that the uni-

versity endorsed or supported the message of the

magazine. In a dissenting opinion, Justice David H.

Souter, joined by Justices John Paul Stevens,

Stephen G. Breyer, and Ginsburg, argued that

the magazine was a sectarian religious publication

and the university’s refusal to fund the publication

was compelled by the establishment clause. Souter

believed that funding the magazine violated the

intent of the framers with regard to govern-

ment support of religion, and he was concerned

that the decision would open the door to greater

government entanglement with religion.

708 student activity fees

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In 1996, three students attending the Univer-

sity of Wisconsin Law School sued the Board of

Regents and the University of Wisconsin. The

students, self-described religious conservatives,

claimed that the allocable student fee system vio-

lated their rights against “compelled” speech. In

West Virginia State Board of Education v. Bar-

nette, 319 U.S. 624 (1943), the Supreme Court

recognized a right against compelled speech

by holding that the First Amendment prohibits

government from requiring a citizen to support

ideas that the citizen ﬁ nds objectionable. Some

of the organizations whose advocacy the students

strongly opposed included the Lesbian, Gay,

Bisexual Campus Center, Amnesty International,

and a socialist student group.

The funds were distributed in three ways: (1)

the student senate appropriated funds for regis-

tered student groups for general operations, travel,

and special events; (2) funds were distributed by

a committee of the student government; and (3)

any registered student group could seek fund-

ing through a student-body referendum vote. In

defending the fee distribution system, the univer-

sity argued that no student was required to join

an organization, nor were they required to attend

programs or events that are offensive to them.

Moreover, objecting students may form their own

organizations and seek funding.

After examining the university’s fee program

under the three-part test outlined in Lehnert v.

Ferris Faculty Association, 500 U.S. 507 (1991),

the lower federal courts concluded that the pro-

gram was not germane to the university’s mission,

did not further a vital policy of the university,

and imposed too much of a burden on the free

speech rights of objecting students. A unanimous

Supreme Court, however, upheld the student fee

system in University of Wisconsin v. Southworth,

529 U.S. 217 (2000). The Court rejected the

Lehnert germaneness test as applied to student

activity fees. Writing for the Court, Justice Ken-

nedy argued that it was inappropriate for courts

to determine what is germane to the mission of a

university because such a determination is “con-

trary to the very goal the University seeks to pur-

sue.” The university had a legitimate educational

policy of encouraging a marketplace of ideas

among students. A mandatory fee was a reason-

able way to promote this goal. The Court empha-

sized that such programs had to be administered

in a viewpoint-neutral fashion, and the Wisconsin

program, except for the voting procedure, satis-

ﬁ ed this requirement.

The Rosenberger holding expanded the pro-

tection for student religious speech, and the

Southworth decision rejected a compelled speech

challenge to a mandatory student activity fee sys-

tem. As long as funds are distributed in a view-

point-neutral fashion, public universities and

colleges may use student activity fees to promote a

diverse marketplace of ideas.

For more information: Calvert, Clay. “Where

the Right Went Wrong in Southworth: Underesti-

mating the Power of the Marketplace.” University

of Maine Law Review 53 (2001).

—John Fliter

student rights

The U.S. Constitution makes no mention of stu-

dent rights. Nonetheless, it shapes student rights

in several ways. Students are protected by basic

constitutional guarantees of civil liberties.

Congress, using its constitutional power to leg-

islate, has carved out areas of student rights and

created administrative bodies to oversee them.

The courts, particularly the Supreme Court, have

played a key role in determining how the Consti-

tution, written in an era before compulsory educa-

tion, public school systems, or public universities

existed, applies to these institutions. The federal

system established by the Constitution allows state

variation in deﬁ ning some student rights. States,

for example, differ in the type of punishment

teachers may administer or the qualiﬁ cations for

in-state tuition in public universities.

Two definitive Supreme Court cases in the

20th century set forth the principle that students

do not surrender their fundamental civil liberties

at the schoolhouse door. In 1944, in West Virginia

v. Barnette, 319 U.S. 624 (1943), a case involving

laws requiring students to recite the Pledge of

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Allegiance to the ﬂ ag, the Supreme Court broad-

ened the issue, ruling that students could not be

compelled to recite the pledge whether for reli-

gious or other reasons of conscience.

The second case, T

INKER V. DES MOINES, 393

U.S. 503 (1969), grew out of the wearing of black

armbands by students to protest the Vietnam War.

The Court, in earlier cases, had extended First

Amendment protection to nonverbal or sym-

bolic speech; in Tinker, they determined that

students did not automatically surrender this right

when in school. Schools must tolerate differences,

even at the risk of unpleasantness, and students

have the right to express controversial viewpoints

not just in class but throughout the school. The

Court recognized the need to balance this right

against schools’ needs to control disruptive behav-

ior and carry out their educational functions, but

found neither to be threatened by the Tinker sce-

nario. The challenge for subsequent courts has

been to determine where lines should be drawn in

allowable symbolic speech and in other forms of

student expression. Issues have ranged from dress

codes, hair length, and display of Confederate

ﬂ ags, to controversial student publications, drug-

related speech, and suggestive student speech at

school assemblies.

The latter was the focus of Bethel School Dis-

trict v. Fraser, 478 U.S. 675 (1986), in which the

Court appeared to take a giant step away from the

expansive tone of Tinker by arguing that society

expected schools to teach socially appropriate

behavior and that school administrators had the

power to determine when speech was inappropri-

ate. In MORSE V. FREDERICK, 551 U.S. ___ (2007),

the Court was very divided as to the future and

precedential application of Tinker but ruled that,

because of the critical need to combat drug abuse,

the Tinker standard did not confer on students

the right to engage in speech that might be inter-

preted as advocating illegal drug use. Tinker rights

have not generally helped students who wish to

wear controversial clothing or violate prevailing

standards of decency. However, while Bethel v.

Fraser, Morse v. Frederick, and other cases have

undercut Tinker’s broad guarantees, the Court has

not repudiated the Tinker principle that students

do not forfeit their constitutional rights while in

school.

Student publications receiving ofﬁ cial school

support are more restricted than individual stu-

dent speech because they are viewed as represent-

ing the school. The Court has held that freedom

of the press does not offer the same degree of

protection to school-sponsored student publica-

tions as it does to the broader mass media, and

that school authorities may censor student writ-

ing deemed inappropriate for such publications

(Hazelwood School District v. Kuhlmeier, 484

U.S. 260 [1988]).

Students’ religious rights have long been con-

troversial. The Supreme Court has interpreted the

establishment clause to mean that students

have the right to be free from state-imposed reli-

gious exercises, such as teacher-led prayer or state

endorsement of religion, such as posting of the

Ten Commandments in classrooms. At the same

time, the free exercise clause guarantees students

the right to discuss their beliefs about religion and

to organize and participate in religious organiza-

tions in their schools on the same basis as other

noncurricular organizations.

Students have the right to be free from unrea-

sonable searches, but courts have granted con-

siderable latitude to school ofﬁ cials to determine

what is unreasonable. School ofﬁ cials do not need

to get a search warrant or to show probable cause,

but the Court has ruled that they must have “rea-

sonable suspicion” of wrongdoing and must limit

the search to relevant objects. Where drug testing

of students in sports and extracurricular activi-

ties is the issue, however, the courts have upheld

broader discretion for school authorities.

Congress has granted students in schools

receiving federal funds the right to conﬁ dential-

ity of certain records, accessed only by the child’s

parents, under the Family Educational Rights and

Privacy Act (FERPA). This right to privacy does

not, however, extend to such in-class activities as

letting students grade each other’s quizzes and

announce the scores (Owasso v. Falvo, 534 U.S.

426 [2002]).

Students are entitled to procedural due pro-

cess in cases involving disciplinary actions against

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them by school authorities. Courts have left much

discretion to the school administrators while

developing the principle that more serious cases

require a more rigorous attention to due process.

Generally, students should know the charges

against them, be given the evidence, and have the

chance to contest the charges.

Although the Constitution contains no explic-

itly stated right to an education, the courts have

treated public schools as more than just another

social welfare beneﬁ t because of the importance

of education to the country and the individual

child. Thus the equal protection clause of

the Fourteenth Amendment has been used

to mandate an equal right to public education for

disadvantaged and minority groups, ranging from

African Americans in the segregated south to the

children of illegal immigrants (B

ROWN V. BOARD OF

EDUCATION, 347 U.S. 483 [1954]; Plyler v. Doe, 457

U.S. 202 [1982]). In 2007, in Parents Involved in

Community Schools v. Seattle School District No.

1, 551 U.S. ___ (2007), Supreme Court justices dis-

agreed among themselves as to whether the legacy

of Brown was best served by color-blind policies

or by policies that consciously created racial bal-

ance in assigning students to schools, ruling 5-4

that school systems could not use race as the pre-

dominant criterion in assigning students to schools

for the purpose of achieving diversity.

The Court makes a distinction between K–12

students and college students. The latter have more

protected rights because higher education is not

compulsory; it is meant to expose students to con-

troversial ideas, and its students are more mature.

For example, the Court has never extended to

universities the limits it allows on expression in

high schools, and universities must be viewpoint-

neutral in dealing with student organizations and

activities. Prior restraint of student publications in

higher education is considered a violation of First

Amendment rights, and Hazelwood does not apply

to universities.

Universities must accord more procedural pro-

tections to their students, who legally are adults

and are considered to have both “liberty” and

“property” interests invested in higher education.

Disciplinary proceedings do not have to acquire

the nature of a criminal court, but more protec-

tions are expected as the gravity of the offense

increases. In cases of suspension or expulsion

for academic reasons, procedural safeguards are

fewer because courts tend to defer to educators

where academic judgments are involved. Conﬁ -

dentiality of records under FERPA applies to the

university level; here, however, control over access

to records rests with students, not parents. Con-

gressional legislation, particularly the Americans

with Disabilities Act, protects the educational

rights of students with disabilities in both schools

and colleges receiving federal funding.

Awareness of and respect for student rights has

grown since the student activism of the 1960s; yet

the topic continues to evoke controversy because

of the potentially adversarial nature of the stu-

dent-school relationship and because of conﬂ icts

between presumed student rights and the aca-

demic and social goals of public education. At the

K–12 level, for example, educators continue to

debate methods for combating de facto racial seg-

regation and promoting diversity while respecting

a student’s right to be treated in a color-blind man-

ner. Affirmative action in admissions based

on race and gender to achieve diversity on college

campuses as an educationally relevant goal of aca-

demia also remains controversial, despite several

major Supreme Court cases seeking to set guide-

lines. The right to free speech and academic free-

dom has come into conﬂ ict with campus speech

codes and directives that attempt to create harmo-

nious academic environments by broadly deﬁ ning

offensive language and sexual and racial harass-

ment, but in so doing tread a ﬁ ne line between

providing a comfortable learning atmosphere for

all and infringing on free expression.

Private schools and universities are not cov-

ered by constitutional protections and thus have

more leeway in placing restrictions on students.

However, courts have protected students’ rights to

attend private or parochial schools, to be home-

schooled subject to state regulations, or in certain

instances even to drop out of school early for reli-

gious reasons. Some voucher programs allowing

students to receive public funds for use at private

or parochial schools have been upheld. Private

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