The Least Dangerous Branch: Judicial Review and the Constitution in Schools

PROFESSOR MELISSA HART

UNIVERSITY OF COLORADO LAW SCHOOL

Article III, Section 1.

• The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.
• Today, there are 94 district courts and 13 courts of appeals in the federal system. Every state has at least one district court and each state is part of a “circuit” covered by one of the courts of appeals.

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Article III, Section 2.

• The judicial power shall extend to all cases… arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority [and to a variety of specific types of cases that might not involve federal law].
• Important idea that the federal courts are courts of limited jurisdiction – there are many kinds of cases that they cannot hear and that is one of the significant limitations on their power

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What is “the judicial power”?

• Power to apply the law to specific disputes
• Power to determine how the guilty will be punished
• Power to interpret the law
• Power of “judicial review”

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What is “judicial review”?

• Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. A court with judicial review power may invalidate laws and decisions that are incompatible with the Constitution. Judicial review is one of the checks and balances in the separation of powers: the power of the judiciary to supervise the legislative and executive branches when the latter exceed their authority.

Why is judicial review important?

• Without judicial review
• Congress could pass laws that were inconsistent with the Constitution and there would be no way to protect individual rights from legislative overreaching
• The President could take actions that were beyond executive authority, and there would be no mechanism for stopping that overreach
• The Constitution requires interpretation

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The First Amendment

• Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
• These words mean both more and less than what they say; courts have to determine what they mean and how they apply to real situations
• Congress
• “no law”
• Ambiguity of terms – free exercise, freedom of speech

The Role of Context and Content – Schools as an Example

• Balance government interest in regulating speech with individual interest in speaking
• Tinker v. Des Moines (1969)
• Students wore black armbands to school to protest war
• School interest in providing a safe learning environment
• Student interest in expressive conduct with political content
• School may regulate student speech only if it materially and substantially disrupts the school environment
• Bethel School District No. 403 v. Fraser (1986)
• Student gave a lewd speech endorsing a classmate for student council
• School interest in prohibiting lewd or inappropriate sexual speech
• Schools do not have to tolerate lewd sexual speech

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First Amendment in Schools (cont.)

• Morse v. Frederick (2007)
• Student displayed a banner that read “BONG HiTS 4 JESUS” as the Olympic Torch run came through town. Student was across the street from school at a school-sponsored event
• School interest in avoiding drug-friendly messages
• Student interest in full speech rights off campus
• School can regulate student speech at a school-sponsored event held during school hours even where the speech took place off campus; school can prohibit pro-drug messages

The Fourth Amendment

• The 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 Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
• What is “unreasonable”?
• Requires a balancing of the needs of the government in the particular context against the citizen’s legitimate expectation of privacy
• Privacy expectations
• At home
• In your car
• In the contents of your pockets
• In the contents of your cell phone

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New Jersey v. TLO (1985)

• T.L.O was found smoking in the bathroom by a teacher, in violation of school rules. The teacher took T.L.O. to the vice principal. When the vice principal questioned her, she denied smoking in the bathroom at all. The vice principal demanded T.L.O. hand over her purse. The vice principal then searched her purse, finding not only cigarettes but also evidence of marijuana sales, including rolling papers, a pipe, a list of students owing T.L.O. money, and a large quantity of cash. T.L.O. was convicted of dealing and use of illicit drugs, expelled from school, and fined $100. T.L.O. appealed on the grounds that a search warrant was not obtained before the vice principal searched her purse and there was no showing of probable cause for the search.
• Students have “a reasonable expectation of privacy for the property they bring with them onto school grounds” but the privacy interest of students must be balanced against the interest of teachers and school officials in maintaining order and discipline in school. This means that schools officials do not need to obtain a warrant before conducting a search because it would “unduly interfere with the maintenance of the swift and informal disciplinary procedures needed in the schools.”
• School officials can justify a search if they have reasonable suspicion to believe that a student has violated school rules or the law. First, a search must be “reasonable at its inception.” This means there must be reasonable grounds for suspecting that the search will turn up evidence showing student has violated the law or the rules of the school. Second, the search must be reasonable in its scope. To be reasonable in its scope, the search must be “reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.”

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State v. Alaniz (North Dakota 2012)

• V. is a police officer who is assigned as a school resource officer at a high school. He works full time at the high school and the school district pays money to the local police department to help fund his position. V. was investigating possible drug use by students near the high school, but off school property, after being alerted to the possible drug use by a school security guard. After V. returned to the school, he saw Alaniz and notified the school principal that he believed Alaniz may be involved in drug activity. The school principal escorted Alaniz into a detention room. V. told Alaniz “if you have anything on you, you need to lay it on the table now,” and Alaniz emptied his pockets, which contained a glass pipe and synthetic marijuana. V. arrested Alaniz. Alaniz was charged with possession of a controlled substance and possession of drug paraphernalia. He challenged the seizure of the evidence.
• There are a number of factors used to determine if a school resource officer is acting as a school official or law enforcement agent at the time of a search. These factors include whether the officer was in uniform, has an office on the school campus, how much time the officer is at school each day, whether the officer is employed by the school system or a law enforcement agency, what the officer’s duties are at school, who initiated the investigation, who conducted the search, whether other school officials were involved, and the officer’s purpose in conducting the search.

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Moot Court as a Teaching Tool

• Allows students to apply legal principles to fact patterns – brings the law to life
• Gives students an opportunity to analogize and distinguish different facts
• Can be used for writing or public speaking opportunities
• Gives students a sense of what judges do in deciding cases
• Can be done in modified form for a single class or multiple classes
• Can be an opportunity to incorporate content experts

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First Amendment

• Julie Turner v. Jefferson High School is a First Amendment case dealing with off-campus student speech. The case involves a female high school student who is suspended for posting an offensive message on a school message board. This case examines an important concept within First Amendment jurisprudence: Does a school have the power under the First Amendment to discipline a student for a derogatory comment that the student wrote off campus on a password-protected forum on a school-sponsored website?
•  Students representing the Petitioner, Julie Turner, will argue that Julie’s speech was protected by the First Amendment, and therefore the school did not have the power to discipline her. They will use First Amendment cases to argue that speech that occurs off-campus is harder to censor than speech that occurs at school, and that Julie’s speech did not cause a material and substantial disruption. These students will argue that cases that allow schools to censor student speech in various contexts do not apply to this case.
• Students representing the Respondent, Jefferson High School, will argue that Julie’s comment did cause a material and substantial disruption at school, and therefore the school was within its power under First Amendment case law to discipline her. They will argue that the cases giving schools the authority to discipline student speech under certain circumstances apply to this case.

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Fourth Amendment

• M.B. v. Capital City School District is a Fourth Amendment case dealing with a cell phone search of a high school student by a school resource officer (SRO). In the Capital City School District, SROs are trained by the Capital City Police Department (CCPD), but their post of duty is at the school. They have school-related activities along with some police powers.
• In this case, after the first period bell rang, graffiti appeared on school property depicting, in large colorful letters, the name “Molly” above the phrases “Just say yes,” “Prom 2014,” and “ItsGoingDown3D.” The SRO investigating the incident, Officer Lewis, rounded up the late students to be searched. One of these students was the Petitioner, M.B. Pursuant to his school duties, Officer Lewis searched M.B.’s backpack for items related to the graffiti. Finding nothing suspicious in her backpack, he proceeded to search her cell phone based on advice from the CCPD drug task force officer, Officer Perez, that drug sellers advertise the locations where drugs will be sold using hashtags that can be tracked through social media apps on cell phones.
• While looking in her phone, Officer Lewis noted that an app called “RxTrackr” was running, and believing it may be connected to drug use, he opened the app and discovered that M.B. used the app to manage a medical condition that required her to take medications at various times throughout the school day. Officer Lewis asked M.B. if the medications were on campus. M.B. said that she had the medication in her locker. Her locker was searched and she was suspended for violating the school’s zero-tolerance drug policy.
• M.B. sued Officer Lewis, Principal Warden, and the school district for violating her Fourth Amendment rights by searching her cell phone without a warrant or sufficient suspicion that she had violated a school rule or committed a crime.

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Alexander Hamilton claimed that the judiciary “will always be the least dangerous branch” because it “has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatsoever.” �

• How accurate have these predictions proven to be? What evidence can you offer to support your position?
• How and why are Supreme Court decisions respected, even though the judiciary has neither “sword nor purse” nor an enforcement arm? 

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What are the major arguments for and against judicial review?

• Alexander Hamilton claimed in Federalist #78 “the interpretation of the laws is the proper and peculiar province of the courts.” Do you agree or disagree? Why?
• What are the advantages and disadvantages of an appointed, life-tenured branch of government overturning laws passed by a democratically elected body of government?

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Although the Constitution does not explicitly mention the power of judicial review, the Supreme Court has exercised this power for more than two hundred years. Is the practice of judicial review consistent with democratic principles? Why or why not? �

• How did the Supreme Court acquire the power of judicial review?
• Do you think the Supreme Court should have the power to declare an act of Congress unconstitutional? Why or why not?
• How should justices determine the meaning of the words of the Constitution?

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