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convictions. Generally considered a liberal on the

Court, Black often sided with the defendants or

with those seeking protection of their constitu-

tional rights.

With such a long tenure on the Supreme Court,

Black had the opportunity to participate in many

inﬂ uential rulings, such as United States v. Car-

olene Products Co., 304 U.S. 144 (1938), and

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

In the latter, while writing the majority opinion

upholding the Japanese internment program, he

also described the use of racial classiﬁ cations as

inherently suspect. This concept of suspect classi-

ﬁ cations would eventually became a constitutional

principle under the Warren Court and subse-

quent courts to strike down racially discrimina-

tory legislation. Black sided with the majority in

major cases such as B

ROWN V. BOARD OF EDUCATION

OF TOPEKA 349 U.S. 294 (1955); BAKER V. CARR,

369 U.S. 186 (1962); E

NGEL V. VITALE, 370 U.S.

421 (1962); G

IDEON V. WAINWRIGHT, 372 U.S. 335

(1963); E

SCOBEDO V. ILLINOIS, 378 U.S. 478 (1964);

and MIRANDA V. ARIZONA, 384 U.S. 436 (1966).

Some cases in which he was in the minority opin-

ion include ROTH V. U.S., 354 U.S. 476 (1957), and

GRISWOLD V. CONNECTICUT, 387 U.S. 479 (1965).

During a 1968 interview, Black placed his dissent

in Adamson v. California, 332 U.S. 46 (1947), as

the best work he had done while on the Supreme

Court.

Constitutionally, Black’s other major legacy

was his insistent support of the total incorpora-

tion doctrine. This doctrine states that the due

process clause of the Fourteenth Amendment

incorporates all of the Bill of Rights provisions to

be limits on states. This theory has never received

a majority of the Court’s support, with it instead

opting for selective incorporation.

Black resigned from the Supreme Court on

September 17, 1971, due to health problems as the

result of a stroke. He died just eight days later.

For more information: Black, Hugo L., and

Elizabeth Black. Mr. Justice and Mrs. Black: The

Memoirs of Hugo L. Black and Elizabeth Black.

New York: Random House, 1986; Dunne, Gerald

T. Hugo Black and the Judicial Revolution. New

York: Simon & Schuster, 1977; Magee, James J. Mr.

Justice Black: Absolutist on the Court. Charlot-

tesville: University Press of Virginia, 1980; New-

man, Roger K. Hugo Black. New York: Fordham

University Press, 1997.

—Carol Walker

Blackstone, William (1723–1780) lawyer and

jurist

William Blackstone was an important English

writer, attorney, judge, university lecturer, and

member of Parliament whose Commentaries on

the Laws of England signiﬁ cantly inﬂ uenced the

Founding Fathers and the writing of the U.S.

Constitution.

Blackstone published his four-volume treatise

Commentaries on the Laws of England between

1765 and 1769. Blackstone’s Commentaries rep-

resented the most comprehensive and accessible

analysis of English law available to 18th- and

early 19th-century English and American audi-

ences, and while Blackstone himself opposed the

American Revolution, his Commentaries helped

shape American political and legal theory. Indeed,

generations of American political thinkers and

leaders, from Thomas Jefferson to Abraham

Lincoln, were familiar with Blackstone and

made reference to his Commentaries.

Born in London, Blackstone was educated at

Oxford. In 1737, he was awarded a prize for his

proﬁ ciency in Latin. He studied a variety of disci-

plines, most notably logic, mathematics, science,

and classics. His intellectual interests were wide

ranging and included—in addition to law—sub-

jects such as architecture and Greek poetry.

Blackstone graduated from Oxford in 1741, was

elected a fellow at Oxford’s All Souls College in

1743, was awarded a Doctor of Civil Law in 1750,

and was named to the ﬁ rst chair at Oxford for the

study of English law in 1758. Blackstone served

as a member in the House of Commons of Parlia-

ment from 1761 to 1770, during which time he had

occasion to articulate his support for the Stamp

Act (1765), a piece of legislation so loathsome to

American colonists that they used tactics ranging

from street protests to the calling by nine Ameri-

62 Blackstone, William

xviii+446_EofUSConsti-v1.indd 62 3/12/09 3:03:55 PM

can colonies of the Stamp Act Congress in New

York City in 1765 in order to pressure England to

repeal the act in 1766. In addition to his academic

and parliamentary pursuits, Blackstone practiced

law and in 1770, assumed a position of justice of

the Court of Common Pleas.

Blackstone’s continuing relevance stems, how-

ever, from neither his service in Parliament nor his

work as a lawyer and judge but rather his author-

ship of Commentaries on the Laws of England. In

the preface, Blackstone informed the reader that

his work grew out of a lecture series he had pre-

sented while teaching at Oxford, and he lamented

what he referred to as “prejudice” against innova-

tive educational ideals. Blackstone proceeded to

argue that an understanding of law should not be

limited to lawyers; on the contrary, an informed

understanding of the principles and practices of

law, Blackstone contended, would enhance civic

life generally.

While Blackstone embraced the 18th-century

class-based perspectives held by many of the

privileged members of his own generation (for

example, he called speciﬁ cally for the propertied

“gentlemen” of his day to become well versed in

law), his larger aim of expanding access to legal

doctrine was translatable to contexts much less

aristocratic than his own (for example, the United

States). Numerous signers of the U.S. Declara-

tion of Independence (1776) owned copies of

the Commentaries; moreover, analyses of 20th-

century U.S. Supreme Court decisions reveal that

the Commentaries were cited by the Court an

average of 10 times per year.

What were the major ideas that American

readers of Blackstone’s Commentaries encoun-

tered? Drawing upon ancient theorists such as

Cicero (106–43 b.c.e.) and modern ones such as

John Locke (1632–1704), Blackstone argued that

natural law (also known as the laws of nature)

is the basis of human-made laws, that God is the

author of natural law and that human beings can

know natural law by virtue of human reason.

Natural law teaches that humans should be free

to pursue happiness. Blackstone also upheld the

natural rights of liberty, security, and property.

With respect to governmental organization, he

theorized that legislative authority is the high-

est (“supreme”) authority of government, and he

advocated a separation of powers and a system

of checks and balances. Blackstone was ada-

mant that governmental systems that failed to

separate executive and legislative authority were

nothing short of tyrannical, regardless of whether

citizens could be construed to have consented

to such arrangements. It is important to keep in

mind, however, that Blackstone’s discussion was

grounded in a concept of legislative authority

modeled according to the English parliamentary

system in which the executive was considered a

member of the legislature.

A prominent and recurring theme of the Com-

mentaries is the thesis that the English legal

system—in both its common law (unwritten, cus-

tomary) traditions and its government-enacted

laws—had successfully protected natural rights

and liberties. This position—along with Black-

stone’s argument in favor of property requirements

for voting and his opposition to the American Rev-

olution—have led some readers to see in Black-

stone an apologist for the status quo and an enemy

of progress. More recently, however, scholars have

challenged one-dimensional interpretations of the

Commentaries and have called attention to Black-

stone’s support for natural rights, his suggestions

that cultural variations in common-law traditions

merit a respect for relativism, and his appreciation

of the role of human reason and discernment (and

thus ﬂ exibility) in interpretative decision making.

For more information: Alschuler, Albert W.

“Rediscovering Blackstone.” University of Penn-

sylvania Law Review 145 (1996): 1–55; Black-

stone, William. Commentaries on the Laws of

England. Vol. 1. Edited by Stanley N. Katz. Chi-

cago: University of Chicago Press, 1979; Prest,

Wilfrid. “Blackstone as Architect: Constructing

the Commentaries.” Yale Journal of Law and the

Humanities 15 (2003): 103–133; Schultz, David.

“Political Theory and Legal History: Conﬂ icting

Depictions of Property in the American Political

Founding.” American Journal of Legal History 37

(1993): 464–495.

—Ellen Grigsby

Blackstone, William 63

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blogs and free speech

A blog is a form of Internet Web site created by

one or more users with entries made in a journal

style. In many respects, the blog resembles an

online diary. The journal format, however, is one

that is intended to foster personal communication

between readers of the blog and the blog’s creator.

The term is a shortened form of Weblog.

Recent studies and surveys have shown that

the portion of the Internet devoted to blogs, an

area commonly known as the blogosphere, is

large and rapidly growing. The Internet author-

ity Technorati, in a February 2006 survey titled

State of the Blogosphere, estimated that there

were 27.2 million blogs. The blogosphere is

believed to double in size every ﬁ ve and one-half

months. A more recent report by the Pew and

American Life Project, Bloggers: A Portrait of

the Internet’s New Storytellers, estimated that

12 million Americans were regular contribu-

tors to blogs. The number of U.S. blog readers

was estimated to be around 57 million adults,

or about 39 percent of the American population

who use online resources.

Blogs are a prime example of the First

Amendment in action. The author of the blog

entry exercises the right to speak as freely as

possible by writing in the online journal. Read-

ers of the blog exercise a mirror-image right to

receive all of the information posted on the blog.

Some commentators have observed that the idea

of a blog is somewhat akin to a “virtual soapbox”

providing both creators and readers a relatively

unrestricted place in which to express ideas and

opinions.

There are, however, significant legal issues

surrounding the creation and existence of blogs.

These include not only the questions of how

unrestricted is the freedom to write as much as

one chooses in the blog and to read what others

have written. Other legal issues that have arisen

include concerns over liability that may attach to

the inclusion of certain materials deemed by oth-

ers to be either harmful or offensive and copyright

issues that frequently arise when other resources

are republished or when links to other Internet

materials are provided in the blog.

One frequent source of contention over blog

sites and entries involves blogs maintained by

employees who feel compelled to discuss their own

employers and employers’ conduct and affairs. An

inﬂ uential Delaware Supreme Court decision in

the case of John Doe v. Patrick Cahill and Julia

Cahill, 884 A.2d 451 (Oct. 5, 2006), addressed

the issue of whether speciﬁ c blog comments were

defamatory to local public ofﬁ cials. The legal anal-

ysis in the Delaware decision joined a signiﬁ cant

number of other court decisions that have upheld

provisions of the 1996 federal Communications

Decency Act, P.L. 104-104, 110 Stat. 56 (Feb.

8, 1996), a measure that protects Web site owners

from legal liability in libel or defamation law-

suits. A more recent decision from the California

Supreme Court, in Stephen J. Barrett v. Ilena

Rosenthal, 146 P.3d 510 (Nov. 20, 2006), held that

the federal act’s immunity to liability applied to

distributors of Internet information as well.

source of conﬂ ict is a popular perception that blog

creators and writers are free to use any material

found online without securing prior permission or

a grant of a license to legally use the material from

the copyright owner. One reason for this belief is

that many bloggers feel they are free to use copy-

righted material as long as they are not themselves

making money from its use.

For more information: Hewitt, Hugh. Blog:

Understanding the Information Revolution That’s

Changing Your World. Nashville, Tenn.: Thomas

Nelson, 2005; Lenhart, Amanda, and Susannah

Fox. Bloggers: A Portrait of the Internet’s New

Storytellers. Washington, D.C.: Pew Internet and

American Life Project, 2006; Technorati Web site.

Available online. URL: http://www.technorati.

com.

—Jerry E. Stephens

BMW of North America, Inc. v. Gore 517

U.S. 559

(1996)

In BMW of North America, Inc. v. Gore, the U.S.

Supreme Court held that a $2 million punitive

damages award against BMW for selling a paint-

64 blogs and free speech

xviii+446_EofUSConsti-v1.indd 64 3/12/09 3:03:55 PM

damaged car violated the due process clause

in the Fourteenth Amendment. This case

was an important decision in recent efforts by

the Supreme Court to decide if the Constitution

places limits on punitive damages.

The case arose after Dr. Ira Gore discovered

that his recently purchased BMW had been

repainted. Furthermore, Gore was not the only

one who had bought a damaged BMW believing

it to be in perfect condition: BMW had a nation-

wide policy of selling damaged cars as new if the

damage could be ﬁ xed for less than 3 percent of

the car’s suggested retail price. To compensate

Gore for the lost value of his car, an Alabama jury

awarded him $4,000 in compensatory damages.

And to punish BMW for its egregious conduct, the

jury awarded Gore $4 million in punitive dam-

ages. After BMW appealed the punitive damages

award, the Alabama Supreme Court reduced that

award to $2 million, a judgment that BMW then

appealed to the U.S. Supreme Court, arguing that

even this reduced award violated BMW’s due pro-

cess right to be free from excessive penalties.

Writing for the majority, Justice John Paul

Stevens found the award unconstitutional. In

reaching this decision, the Court announced three

guideposts that states must consider in award-

ing punitive damages: (1) the reprehensibility of

the defendant’s conduct, (2) the proportionality

between the punitive damages and the compensa-

tory damages awarded, and (3) the comparability

of the punitive damages award to civil or criminal

penalties that the state could have imposed for the

defendant’s misconduct. Because Gore’s injury

was purely economic, because the punitive dam-

ages award was 500 times the amount of Gore’s

compensatory damages, and because the maxi-

mum penalty available for similar conduct was

limited to $2,000, the Court reversed the Alabama

Supreme Court decision. Incidentally, on the ulti-

mate remand to the trial court, the punitive dam-

ages awarded against BMW were $50,000.

Justice Antonin Gregory Scalia wrote a

dissenting opinion, in which Justice Clarence

Thomas joined, arguing that the due process

clause does not require these three guideposts but

merely some judicial determination that the jury

award is “reasonable.” Justice Ruth Bader Ginsburg

also wrote a dissenting opinion, in which Chief

Justice William Hubbs Rehnquist joined,

claiming that the Court should not get involved in

limiting punitive damages, a matter traditionally

controlled by the several states.

Gore is an important case for the business

community because it means that, absent a con-

stitutional amendment or a Supreme Court deci-

sion overruling the decision, all punitive damages

awards against corporate wrongdoers must com-

port with the three guideposts. Some business

interests, however, argue that the Gore ruling does

not go far enough, because the proportionality

guidepost is a loosely deﬁ ned relational guideline,

rather than a binding numeric ratio. So far, the

Court has resisted announcing a numeric require-

ment and in fact has suggested it will not move in

that direction. Most likely, the Court will continue

to permit states to consider the reprehensibility of

the defendant’s conduct as the most important

factor in awarding punitive damages.

For more information: Sunstein, Cass. Punitive

Damages: How Juries Decide. Chicago: University

of Chicago Press, 2003.

—Jesse R. Merriam

Board of Education of Kiryas Joel Village

School District v. Grumet

512 U.S. 687

(1989)

In Board of Education of Kiryas Joel Village

School District v. Grumet, the U.S. Supreme

Court held that a statute creating a special school

district based on the lines for a village incorpo-

rated by a religious sect to exclude all but its fol-

lowers violated the establishment clause of

the First Amendment.

The state of New York created a school district

based on the lines of a village named Kiryas Joel,

established by followers of a strict form of Juda-

ism. Residents of Kiryas Joel were religiously con-

servative and avoided assimilation into what they

saw as the modern world by, among other things,

segregating individuals by sex, speaking primarily

Yiddish, and rejecting popular culture. Taxpayers

Board of Education of Kiryas Joel Village School District v. Grumet 65

xviii+446_EofUSConsti-v1.indd 65 3/12/09 3:03:56 PM

and an association of school boards brought suit,

challenging the constitutionality of this new school

district.

In Justice David H. Souter’s opinion for

the Court, he explained that the religion clauses

require neutrality toward religion; thus, govern-

ment may not favor one religion or its adherents

over another religion or nonadherents. On the

other hand, government may accommodate the

religious needs of students by alleviating special

burdens placed upon those students without vio-

lating the religion clauses.

In light of this neutrality requirement, the

Court held that the creation of the Kiryas Joel

school district was unconstitutional. When the

state created the school district, it improperly

delegated its discretionary authority over public

schools to a religiously deﬁ ned group. The Court

explained that because the group with control

over the schools was religiously deﬁ ned, there is

no guarantee that it will remain neutral toward

religion.

However, because government may accom-

modate the religious needs of students to a cer-

tain extent, the Court held that the state and the

parents from the Kiryas Joel school district may

seek other means of addressing the unique issues

inherent in such a religiously isolated community.

For example, the school district of which Kiryas

Joel was part before the creation of their own

district could have accommodated the religious

needs of the sect through bilingual or bicultural

special education for the Kiryas Joel children.

Justice Antonin Gregory Scalia dissented,

arguing that the creation of the Kiryas Joel school

district did not violate the establishment clause.

In his view, the school district was based on the

diverse and unique cultural needs of the students,

not on their religious afﬁ liation.

For more information: Bagyi, John. Board of

Education of Kiryas Joel v. Grumet: Misconstru-

ing the Status Quo as a Neutral Baseline.” Albany

Law Review 60 (1996): 541; Epps, Garrett. “What

We Talk About When We Talk About Free Exer-

cise.” Arizona State Law Journal 30 (1998): 563.

—Winston E. Calvert

Board of Education Pottawatomie County

v. Earls

536 U.S. 822 (2002)

In Board of Education Pottawatomie County v.

Earls, the U.S. Supreme Court upheld a policy

requiring all middle and high school students to

consent to urinalysis testing for drugs in order to

participate in any extracurricular activity. Here,

the Court ruled that the test did not violate the

Fourth Amendment or the Fourteenth

Amendment.

In 1998, the public school district in Tecum-

seh, Oklahoma, adopted the Student Activities

Drug Testing Policy. The policy permitted man-

datory, suspicionless drug testing of students par-

ticipating in extracurricular activities such as the

debate team, band, or drama club. Lindsay Earls,

a high school student and member of Tecumseh’s

choir, the marching band, and the academic team,

alleged that the policy violated her Fourth Amend-

ment rights.

Supreme Court precedents have placed student

drug testing under a “special needs” exception

to the Fourth Amendment warrant require-

ment, because such testing is considered to be

an administrative rather than a criminal search.

In Vernonia School District v. Acton, 515 U.S.

646 (1995), the Supreme Court upheld random,

suspicionless drug testing for student athletes

in a school where athletes were the leaders of a

pervasive drug culture. The Court reasoned that

athletes are often involved in contact sports, and

it is important for player safety to ensure that no

participant is using drugs. The Court also argued

that student athletes, given the nature of their

activities, have a reduced expectation of pri-

vacy and that the testing did not lead to criminal

prosecution but merely probation from school for

repeated violations.

Applying Vernonia, the district court in Earls

ruled in favor of the school district. The Tenth

Circuit reversed, holding that the testing policy

violated the Fourth Amendment. It concluded

that before imposing a suspicionless drug-testing

program, a school must demonstrate some iden-

tifiable drug abuse problem among a sufficient

number of those tested. The court determined

that the school district had failed to demonstrate

66 Board of Education Pottawatomie County v. Earls

xviii+446_EofUSConsti-v1.indd 66 3/12/09 3:03:56 PM

such a problem among Tecumseh students partici-

pating in competitive extracurricular activities.

Justice Clarence Thomas’s majority opinion

in Earls (joined by Chief Justice William Hubbs

Rehnquist and Justices Antonin Gregory

Scalia, Anthony M. Kennedy, and Stephen

G. Breyer) applied a fact-specific balancing

test between the special needs of the school in

promoting a safe educational environment and

the Fourth Amendment rights of students. Jus-

tice Thomas concluded that the testing policy

did not violate the Fourth Amendment because

any privacy invasion was insigniﬁ cant given the

minimally intrusive nature of the testing. The

Court also noted that the testing did not lead to

criminal prosecution but merely exclusion from

the group and probation from school for repeated

offenses. Like the Vernonia decision, the Court

argued that students involved in extracurricular

activities have a reduced expectation of privacy.

Justice Thomas cited the nationwide epidemic of

drug use and evidence of increased drug use in

the schools as reasonable bases for the drug-test-

ing policy.

Justice Ruth Bader Ginsburg authored the

dissenting opinion, joined by Justices David H.

Souter, Sandra Day O’Connor, and John

Paul Stevens. The dissenters distinguished the

facts of the case from Vernonia. Justice Ginsburg

argued that the Tecumseh policy was “capricious,

even perverse” in that it “targets for testing a stu-

dent population least likely to be at risk from illicit

drugs and their damaging effects.” The dissenters

gave greater weight to a student’s privacy expecta-

tion and argued that the Tecumseh policy is coun-

terproductive because it steers students at greatest

risk for substance abuse away from extracurricu-

lar involvement that potentially may reduce drug

problems.

Following the Earls decision, a few schools

implemented a policy of random drug testing for

all students, regardless of participation in sports

or extracurricular activities. These broad testing

programs are still being litigated in the courts.

For more information: Donovan, Courtney.

“Board of Education v. Earls: Has the Supreme

Court Gone Too Far on Student Drug Testing?”

Georgetown Journal of Law and Public Policy

2 (2004): 337; Higbee, Kari L. “Student Privacy

Rights: Drug Testing and Fourth Amendment

Protections.” Idaho Law Review 41 (2005): 361.

—John Fliter

Board of Education v. Pico 457 U.S. 853

(1982)

In Board of Education v. Pico, a plurality of the

U.S. Supreme Court found that a school board

may not remove a book from the school library

because of the viewpoint expressed in the book.

In Pico, the school board for the Island Trees

Union Free School District in New York had

ordered the removal of several books, including

Slaughterhouse-Five, The Naked Ape, and Soul

on Ice, from the school library for being “anti-

American, anti-Christian, anti-Semitic, and just

plain ﬁ lthy.” Justices William J. Brennan, Jr.,

Thurgood Marshall, John Paul Stevens, and

Harry Andrew Blackmun contended that once a

library acquires a book, the First Amendment

prohibits denying students such a book because

of the ideas contained in the book. Justice Byron

Raymond White, concurring in judgment, did not

reach the First Amendment question but instead

found that the original trial court should have let

the matter proceed to trial. The four dissenting

justices, Warren E. Burger, William Hubbs

Rehnquist, Lewis Franklin Powell, Jr.,

and Sandra Day O’Connor, argued, to no avail,

that the school board’s actions should not be over-

turned by the courts.

Local school boards and school ofﬁ cials gener-

ally possess wide latitude in organizing and admin-

istering public education, yet the Constitution still

imposes limits. In ruling that students may not

be compelled to recite the Pledge of Allegiance

(West Virginia Board of Education v. Barnette,

319 U.S. 624 [1943]), the Supreme Court famously

stated: “If there is any ﬁ xed star in our constitu-

tional constellation, it is that no ofﬁ cial, high or

petty, can prescribe what shall be orthodox in

politics, nationalism, religion, or other matters

of opinion or force citizens to confess by word or

Board of Education v. Pico 67

xviii+446_EofUSConsti-v1.indd 67 3/12/09 3:03:56 PM

act their faith therein.” And in reviewing a case

involving the suspension of high school students

who wore black armbands to protest the govern-

ment’s actions in Vietnam (T

INKER V. DES MOINES

CHOOL DISTRICT, 393 U.S. 503 [1969]), the Court

illustriously declared: “Neither students nor teach-

ers shed their constitutional rights to freedom of

speech or expression at the schoolhouse gate.” The

Pico plurality similarly bristled at the censorship

of the Island Trees Union Free School District:

“Our Constitution does not permit the official

suppression of ideas.”

In the quarter-century following the Supreme

Court’s ruling in Pico, censorship efforts still

persist, including efforts to remove library books

about voodoo, homosexuality, and even Harry

Potter. While these efforts to remove library

books have generally been stymied, Pico has been

limited sometimes in its application to the school

library setting. Efforts to remove works such

as Aristophanes’ Lysistrata and Chaucer’s The

Miller’s Tale from the classroom have on occasion

been successful.

For more information: Peltz, Richard J. “Pieces

of Pico: Saving Intellectual Freedom in the Pub-

lic School Library.” Brigham Young University

Education and Law Journal 103, no. 2 (2005):

103–158.

—Martin J. Sweet and Caitlin F. Currie

Board of Regents v. Roth 408 U.S. 564

(1972)

The constitutional rights of public-sector employ-

ees whose jobs are terminated were limited by the

decision of the U.S. Supreme Court in Board of

Regents v. Roth. The Roth ruling restricts most

public-sector employees from challenging their

discharge under the due process clause of the

Fourteenth Amendment of the U.S. Consti-

tution, which provides that a person may not be

deprived of property or liberty without due pro-

cess of law. But the Roth case and its progeny give

public-sector employees a right to a “name-clear-

ing” hearing for aspersions cast on their character

when ﬁ red.

The Roth case arose out of the termination of

a nontenured college professor in Wisconsin. He

was informed, after one year, that he would not

be rehired, without any explanation or reasons.

He sued the school ofﬁ cials, claiming that non-

retention without any reasons violated his right

to procedural due process under the Fourteenth

Amendment. He based his claim on cases that

had required government to provide a hear-

ing before depriving anyone of their property

rights. The U.S. Supreme Court rejected his

claims, however, holding that although he had an

“abstract concern in being rehired,” his expec-

tation did not constitute a “property interest”

requiring a hearing.

The Roth ruling presaged subsequent cases that

did expand the rights of terminated employees.

In Cleveland Board of Education v. Loudermill,

470 U.S. 532 (1985), the Supreme Court held that

public-sector employees must be given at least

a minimal opportunity to respond to allegations

before they are fired. The Loudermill hearing

supplemented other reports of terminated govern-

mental employees that may exist in state laws, civil

service rules, governmental personnel policies, or

collective bargaining agreements.

The Roth case also created another right for

public-sector employees. In Roth, the Court

alluded to rights that employees may have to

a hearing if aspersions are cast about them in

connection with their discharge. Subsequent

cases ﬂ eshed out the name-clearing right estab-

lished in Roth. The right applies to public-sector

employees who, when terminated, are subject to

public charges that impute serious misconduct,

including immoral or illegal behavior. If so, they

may be entitled to a hearing to respond to the

charges.

The failure of a government entity to provide

a name-clearing hearing can entitle a discharged

employee to money damages for the harm caused

to the individual’s reputation. The procedure an

employee must follow to activate the right to a

name-clearing hearing is uncertain. Some courts

require that the employee make a formal request

for a name-clearing hearing, while others dispense

with that obligation.

68 Board of Regents v. Roth

xviii+446_EofUSConsti-v1.indd 68 3/12/09 3:03:57 PM

For more information: Schwartz, Bernard. A

History of the Supreme Court. New York: Oxford

University Press, 1993.

—Marshall Tanick

Bob Jones University v. United States 461

U.S. 574

(1983)

In Bob Jones University v. United States, the

Supreme Court held that denial of tax-exempt

status for a charitable organization on the ground

that its policies were racially discriminatory and

therefore violated public policy was consistent

with the Constitution.

This opinion involves two separate cases that

the Court consolidated as they both involved the

same issue. In the ﬁ rst case, Bob Jones Univer-

sity, an evangelical Christian school, maintained

a policy that denied admission to any person who

was involved in or advocated interracial marriage

or dating. The second case involved Goldsboro

Christian Schools, which maintained other racially

discriminatory admissions policies whereby it

admitted almost exclusively Caucasian students.

Both institutions claimed that their admissions

policies were based on the respective institutions’

religious beliefs.

Although both institutions previously enjoyed

tax exemption under Section 501(c)(3) of the Inter-

nal Revenue Code, which provides tax exemption

to religious, charitable, and educational organiza-

tions, the Internal Revenue Service (IRS) amended

its regulations to provide that institutions would

not qualify for tax exemption unless they adopted

nondiscriminatory policies. Because both Bob

Jones University and Goldsboro Christian Schools

maintained racially discriminatory policies after

adoption of this regulation, the IRS withdrew tax-

exempt status from both institutions.

The Supreme Court held that the denial of

tax-exempt status did not violate the Constitution.

Writing for the Court, Chief Justice Warren

Earl Burger explained that Section 501(c)(3)

included the common law concept of “charity.”

Thus, an organization must show not only that

it is a religious, charitable, or educational insti-

tution but also that its practices and mission do

not offend public policy. In light of the important

public policy of eliminating racial discrimination,

the Court held that denial of tax exemption to reli-

gious or educational institutions whose policies

discriminate on the basis of race was not constitu-

tionally suspect.

Moreover, the Court held, denial of tax exemp-

tion does not violate the rights of the institutions

under the religion clauses of the First Amend-

ment. The Court held that the fundamental,

overriding interest of eliminating racial discrimi-

nation in education substantially outweighs the

burden placed upon the institutions by denying

tax exemption.

The sole dissenter, Justice William Hubbs

Rehnquist, agreed with the majority that there is

a strong national policy against racial discrimina-

tion but argued instead that Section 501(c)(3) did

not require institutions to abide by such impor-

tant public policies. In his view, the language of

the statute clearly did not require what the major-

ity asserted. And any change to the effect of the

statute should be enacted by Congress rather than

required by a judicial opinion.

For more information: Edwards, John. “Democ-

racy and Delegation of Legislative Authority: Bob

Jones University v. United States.” Boston College

Law Review 26 (1985): 745.

—Winston E. Calvert

Bolling v. Sharpe 347 U.S. 497 (1954)

In Bolling v. Sharpe, the Supreme Court applied

the school desegregation ruling of the landmark

companion case B

ROWN V. BOARD OF EDUCATION OF

OPEKA, 347 U.S. 483 (1954), to the public schools

of Washington, D.C. The Court also suggested

that the guarantee of due process in the Fifth

Amendment included an implicit guarantee of

“equal protection” similar to the equal protec-

tion clause of the Fourteenth Amendment.

The case began in 1950 when Spottswood T.

Bolling, Jr., and other black junior high school

students, led by a group of local parents, were

turned away from the newly built, all-white John

Philip Sousa Junior High School. The junior high

Bolling v. Sharpe 69

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school the students were instead forced to attend

was nearly 50 years old and lacked many facilities

and resources. A lawsuit was ﬁ led for Bolling and

several other students, challenging segregation in

the D.C. schools. After the case was dismissed in

federal district court, the Supreme Court agreed

to hear the appeal, before a ruling by a federal

appeals court, in order to consider it along with

four other cases that made up Brown v. Board of

Education.

The Bolling case, however, had to be handled

separately because the other cases involved a

claim that segregation was unconstitutional in

violation of the equal protection guarantee of the

Fourteenth Amendment, which applies only to

state governments and not to the federally con-

trolled D.C. school board. At the time, the Fifth

Amendment due process guarantee had not been

interpreted to include the same antidiscrimination

ideal as the Fourteenth Amendment.

Bolling v. Sharpe was decided unanimously on

the same day, May 17, 1954, as the Brown decision

and was also written by Chief Justice Earl War-

ren. The Court said the concepts of equal protec-

tion and due process both are derived “from our

American ideal of fairness.” The Court said that

the kind of discrimination involved in the case was

“so unjustiﬁ able” as to violate the liberty guaran-

teed by due process in the Fifth Amendment.

Chief Justice Warren thought the Constitution

had to be understood to impose the same nondis-

crimination ideal on all levels of government. “In

view of our decision that the Constitution prohib-

its the states from maintaining racially segregated

public schools, it would be unthinkable that the

same Constitution would impose a lesser duty on

the Federal Government,” Warren wrote.

The Court’s reading of an equal protection

component into the Fifth Amendment has served

as the basis for many discrimination lawsuits

against the federal government in the decades

since the ruling. Cases involving race or gender

discrimination in federal programs and affirma-

tive action in federal programs were decided

under this Fifth Amendment principle.

The Sousa Junior High School, which accepted

its ﬁ rst black students in the fall of 1954, is still in

use and has been designated a National Historic

Landmark. At the start of the 21st century, how-

ever, the student population at Sousa was almost

entirely black due to the shifting nature of the Dis-

trict of Columbia’s population and neighborhoods.

For more information: Kluger, R. Simple Jus-

tice: The History of Brown v. Board of Education

and Black America’s Struggle for Equality. New

York: Knopf, 1975; Rubin, Peter J. “Taking Its

Proper Place in the Constitutional Canon: Bolling

v. Sharpe, Korematsu, and the Equal Protection

Component of Fifth Amendment Due Process.”

Virginia Law Review 92 (2006): 1,879.

—Stephen Wermiel

book burning

Book burning is the destruction of books or the

written word by ﬁ re. It is ordinarily a public and

often ceremonial practice aimed at a particular

person or group of persons. The practice is most

often an expression of moral, political, or religious

objection to the specifically targeted material.

The term, however, presently includes items of

writing other than books. Thus, for example, CDs,

videotapes, and other recordings have also been

destroyed through “book” burning. In some situa-

tions, especially if it involves a government entity,

book burning may implicate First Amendment

issues.

Despite the dramatic nature of the actions

taken, book burning is merely one form of the

attempted suppression or censorship of ideas.

A wide range of books—from the works of Wil-

liam Shakespeare to John Steinbeck’s Grapes of

Wrath—have been the targets of action by oppo-

nents of these books. The more extreme form of

suppression may, on occasion, take the form of

the physical destruction of the book itself. Ironi-

cally enough, one book often targeted by would-be

book burners is the classic science ﬁ ction novel by

Ray Bradbury, Fahrenheit 451. The novel tells the

story of a futuristic totalitarian society in which

ﬁ remen are used to burn unapproved literature.

The novel begins, appropriately enough, with “It

was a pleasure to burn.”

70 book burning

xviii+446_EofUSConsti-v1.indd 70 3/12/09 3:03:57 PM

The history of book burning is almost as

extensive as the history of writing itself. Notable

examples of the ceremonial destruction of the

printed word have occurred in many places and

at many times. One of the most signiﬁ cant, and

still little understood historically, was the destruc-

tion of the Library of Alexandria in a.d. 391 fol-

lowing encouragement from the Roman emperor

Theodosius I, who had ordered the destruction

of all pagan temples. Other notable book burning

incidents include the destruction of supposedly

heretical texts after the First Council of Nicaea

in a.d. 325, the destruction of the royal library

of the Persian Samanid dynasty at the turn of the

11th century following the invasion by the Turks,

and the burning of Arabic and Hebrew texts, on

the instructions of the archbishop of Granada, in

Andalusia, Spain, in about 1400. The 20th century

witnessed many book burning incidents including

the destruction by the Bolsheviks in 1917 Russia

of works deemed to be contrary to communism

and the burning of works by Jewish authors in the

1930s and 1940s in Nazi Germany.

The United States has not been immune to book

burning fervor. In 1953, Senator Joseph McCar-

thy submitted a list of books by supposedly pro-

communist authors found in U.S. Department of

State libraries in Europe. The State Department

acquiesced in McCarthy’s demands that the books

and any other “material by controversial persons,

communists, fellow travelers” and others were to

be removed. To his credit, President Dwight D.

Eisenhower urged Americans not to burn books

and instead turn to libraries and read.

A more contemporary target of book burners

has been the various Harry Potter novels by the

Scottish author J. K. Rowling. The boy wizard has

inspired many, particularly the more fundamen-

tal religionists in the United States, to attack the

ideas and writings in the popular book series.

As a practice, book burning is contrary to the

fundamental principles of the First Amendment

itself. The constitutional amendment protects not

only acceptable, conventional, and noncontrover-

sial ideas and writings but those ideas and writings

that are not as popularly received in any commu-

nity. The First Amendment establishes a powerful

presumption in support of the free expression of

ideas. These ideas and their written forms are fur-

thermore afforded a reasonable process in order

to determine whether the ideas and writings are

to be constitutionally protected.

A set of constitutional standards has been

developed for when challenged ideas and writ-

ings are alleged to contain merely prurient con-

tent. For example, a standard for a deﬁ nition of

pornography was developed in the U.S. Supreme

Court decision of M

ILLER V. CALIFORNIA, 413 U.S.

15 (1973). This standard assures that suppression

efforts do not encroach upon those constitution-

ally protected forms of speech and writing. A

single community standard forms the basis of this

constitutional test. In addition, in cases such as

OARD OF EDUCATION V. PICO, 457 U.S. 853 (1982),

a plurality of the Court ruled that it was a viola-

tion of the First Amendment for a school board

to remove a book from the school library because

of the viewpoint expressed in it. While neither

Miller nor Pico addressed book burning, were

such a practice pursued by a governmental agency

or ofﬁ ce as a way of suppressing speech, it would

violate the First Amendment. Otherwise, private

citizens who wish to burn books as a form of pro-

test may do so as they wish.

For more information: Book Burning. Ameri-

can Library Association, Office of Intellectual

Freedom. Available online. URL: http://www.ala.

org/oif/bannedbooks-week/bookburning/book-

burning.htm; Center for Media Literacy Web site.

Available online. URL: http://www.medialit.com/

about_cml.html.

—Jerry E. Stephens

Bork, Robert H. (1927– ) legal scholar

Born March 1, 1927, Robert H. Bork is a renowned

legal scholar. He earned a law degree at the Uni-

versity of Chicago in 1953, joined a Chicago law

ﬁ rm, and then became a faculty member of Yale

Law School before serving as solicitor general from

1973 until 1977. During this period, he also served

as acting attorney general in 1974. He taught at

Yale from 1977 to 1979 and served as a U.S. court

Bork, Robert H. 71

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