Circuit Splits

Clash Over Town's Ten Commandments Monument Highlights Division Over Standing

During the early 1950s, after learning that a juvenile offender had never heard of the Ten Commandments, a state judge made it his mission to post copies of the Ten Commandments in courthouses across the country. Acclaimed director Cecile B. DeMille, after receiving news of the judge's crusade while shooting his 1956 blockbuster The Ten Commandments, teamed up with the judge to donate thousands of Ten Commandments monuments to cities and states across the country.

As the Supreme Court would later explain in Van Orden v. Perry, the donations---made through a civic organization known as the Fraternal Order of Eagles---“were motivated by a desire to ‘inspire the youth’ and curb juvenile delinquency by providing children with a ‘code of conduct or standards by which to govern their actions.’” 545 U.S. 677, 714 (2005). While state and local officials across the nation welcomed the donations by displaying the monuments in courthouses and public parks (not to mention the lawn of the state capital building in Texas's case), others have spent the last few decades trying to have them removed.

In one such case last week, the Eighth Circuit held that the Red River Freethinkers, “a non-profit corporation dedicated to the promotion of atheistic and agnostic views of the supernatural,” could proceed with its lawsuit against the City of Fargo over a monument of the Ten Commandments situated on public property. Red River Freethinkers v. City of Fargo, No. 10-3214 (8th Cir. May 25, 2012). The U.S. District Court for the District of North Dakota initially dismissed the Freethinkers' lawsuit requesting removal of the monument from the city’s “Civic Plaza.”

Rather than appealing the district court’s decision, the Freethinkers thought of another strategy: request that the city place their own monument next to the Ten Commandments monument, which they hoped would “downplay the Christian message of the Ten Commandments monument.” To maintain the status quo and avoid the appearance of playing favorites, the city ultimately adopted “a policy of not accepting additional monuments to be placed on the Civic Plaza." The Freethinkers seized the opportunity by again sueing the city, this time claiming that the city's new policy was intended to exclude their monument and therefore violated the Establishment Clause, which bars state and local governments from “respecting an establishment of religion.” The district court again dismissed their lawsuit, finding that the organization had not suffered an “injury in fact,” and thus lacked standing to sue. 

Last week, in reversing the district court's decision, the Eighth Circuit called attention to the following circuit split over the test for determining “the injury required to confer standing in so-called ‘passive-display’ cases”:

1. The “Direct-and-Unwelcome Test”

By far the prevailing view requires only direct and unwelcome personal contact with the alleged establishment of religion. See, e.g., Adland, 307 F.3d at 478 (holding, in an Eagles Ten Commandments monument case, "an Establishment Clause plaintiff need not allege that he or she avoids, or will avoid, the area containing the challenged display."); Books, 235 F.3d at 301 ("We therefore conclude that a plaintiff may allege an injury in fact when he is forced to view a religious object that he wishes to avoid but is unable to avoid because of his right or duty to attend the government-owned place where the object is located."); Suhre v. Haywood County, 131 F.3d 1083, 1087­­­–88 (4th Cir. 1997) (rejecting the view plaintiffs must alter their behavior to incur injury in fact, concluding "neither Supreme Court precedent nor Article III imposes such a change-in-behavior requirement. . . . Rules of standing that require plaintiffs to avoid public places would make religious minorities into outcasts."); Foremaster v. St. George, 882 F.2d 1485, 1490-91 (10th Cir. 1989) (holding plaintiff had standing by alleging direct personal contact with offensive municipal conduct even though he did not contend he changed his behavior); Saladin v. Milledgeville, 812 F.2d 687, 692 (11th Cir. 1987) (holding city residents had standing to challenge the city's placement of the word "Christianity" on its official seal because they regularly received correspondence bearing the seal and the seal made them feel like second-class citizens); Am. Civil Liberties Union of Georgia v. Rabun County Chamber of Commerce, 698 F.2d 1098, 1107­–08 (11th Cir. 1983) (holding one plaintiff had standing to challenge a large cross in a state park solely "because the cross [was] clearly visible from the porch of his summer cabin as well as from the roadway he must use . . . .").

ACLU Neb. Found. v. City of Plattsmouth, 358 F.3d 1020, 1029-30 (8th Cir. 2004), superseded by 419 F.3d 772 (en banc).

2. The “Altered-Behavior Test”

The more demanding test requires a plaintiff to prove, at a minimum, he altered his behavior to avoid the allegedly unconstitutional display. Freedom from Religion Found., Inc. v. Zielke, 845 F.2d 1463, 1467-68 (7th Cir. 1988) (denying standing to challenge Ten Commandments display in a public park to residents who "conceded that they did not alter their behavior in any manner as a result of the Ten Commandments monument . . . .").⁷

        7. It appears likely the Seventh Circuit has disowned the "altered behavior" test and         distinguished this language contained in Zielke. See Doe v. Montgomery, 41 F.3d 1156,         1160-61 (7th Cir. 1994); Books, 235 F.3d at 299-300.

Id.

Issues in Constitutional Litigation: A Context and Practice Casebook [Book Review - Part 2 of 2]

Yesterday I reviewed Professor Sarah Ricks and Professor Evelyn Tenenbaum's new casebook entitled Current Issues in Constitutional Litigation: A Context and Practice Casebook (Carolina Academic Press 2011). In case you missed it yesterday, you can find my review of the professors' new casebook here.

Today I wanted to encourage readers to check out the following two sample chapters, which you can download for free on SSRN:

• Chapter Five - 42 U.S.C. § 1983 Action Under Color of Law. To give you a better idea of the layout of each chapter, here is a screenshot of chapter five's table of contents:

• Chapter Fourteen - Protecting Freedom of Religion in Prison: The Free Exercise Clause and RLUIPA. And here is a screenshot of what you can expect to find in this chapter:

Is the Langdellian case method finally showing signs of aging? Should law professors abandon the casebook/Socratic method of teaching law in favor of the "context-and-practice method"? I invite readers to share their thoughts by leaving a comment below!

Issues in Constitutional Litigation: A Context and Practice Casebook [Book Review - Part 1 of 2]

Each year new crops of wide-eyed 1Ls listen to law professors opine that they must learn how to "think like a lawyer.” Yet, as the New York Time’s David Segal pointed out in a recent article entitled “What They Don’t Teach Law Students: Lawyering,” the law-school curriculum has, for more than a century now, “emphasized the theoretical over the useful.” But to quote the great Bob Dylan, “The times they are a-changin.’”

According to an article in the Wall Street Journal (here), many of the nation’s top law schools “are throwing out decades of tradition by replacing textbook courses” with courses like Indiana Law’s “course of so-called emotional intelligence,” Harvard Law’s new “problem-solving class for first-year students,” and Stanford’s “full-time clinical course” in which students must complete “several 40-hour plus weeks of actual case work” to graduate.

Professor Sarah Ricks of the Rutgers School of Law was nice enough to send me a courtesy copy of her new casebook, which she coauthored with Professor Evelyn Tenenbaum of Albany Law School, entitled Current Issues in Constitutional Litigation: A Context and Practice Casebook (Carolina Academic Press 2011). As the title suggests, this casebook is designed to help students think about the law from the perspective of a practicing lawyer. Like many of the great casebooks on the subject that have come before it, Issues in Constitutional Litigation covers the landmark Supreme Court cases with intelligent commentary and thoughtful organization. Unlike many of the great casebooks on the subject that have come before it, the book also focuses on federal circuit decisions, with a particular emphasis on both established and emerging circuit splits. Each chapter also strives to capture the human element of practicing law--something that legal opinions frequently fail to convey. Students will read letters from inmates, review historical documents like the 1867 cover of Harper's Weekly depicting black men casting their "first vote," receive practice pointers from seasoned veterans, and receive exposure to a host of other "real-world" issues that help bring the cases to life.

To be clear, Issues in Constitutional Litigations does not trash the traditional casebook model. The important cases are all still there. Instead, the book improves upon the old casebook model in two important ways. First, it places each case in a broader context that helps explain the doctrinal developments that might otherwise feel counterintuitive or arbitrary to students who limit their study of the subject to the four corners of the opinions.

Second, the book emphasizes the advocate's role in shaping the development of constitutional law. This is a critical component of thinking like a lawyer; and one that the casebook/Socratic method tends to neglect. The biggest criticism I have heard from seasoned attorneys about their freshly minted colleagues--which I largely attribute to the casebook/Soctratic method of teaching--is that law students graduate with the impression that they are supposed to analyze and apply the law in a disinterested, neutral manner as they might in the classroom when called on by their professor to recite the previous night's reading assignment. Issues in Constitutional Litigation does an excellent job illustrating the relationship that attorneys have with the court and their client, as well as the active role attorneys play in shaping the law through zealous advocacy for their client's interests. In other words, the book focuses the reader's attention on the process through which constitutional law is made, not solely on the finished product of that process.

The book, Professor Ricks explains, accomplishes this by "plac[ing] students in roles as practitioners handling simulated law practice problems" and provides a more engaging learning experience through the use of "exercises, visual aids, and questions to guide student reading." The book also "includes materials that help students reflect on their professional roles.” You can purchase Current Issues in Constitutional Litigation online here. Tomorrow’s post will feature an excerpt from the book that you won’t want to miss. 

Does the 1st Amendment Permit Viewpoint-Based Restrictions on School-Sponsored Speech?

Last month we looked at a circuit split arising from the Supreme Court’s 1988 decision in Hazelwood School District v. Kuhlmeier, in which the Court recognized a public school’s right to restrict “school-sponsored speech” without offending the First Amendment where the restriction is reasonably related to a legitimate educational concern. (You can read the post here.) As a result, schools have broad discretion over the curriculum presented to students. 

Last week in Ward v. Polite, the Sixth Circuit found that "the First Amendment does not permit educators to invoke curriculum ‘as a pretext for punishing [a] student for her . . . religion’” because such speech “discriminating against the religious views of a student is not a legitimate end of a public school.” Nos. 10-2100/2145 (6th Cir. Jan. 27, 2012). This position appears to be consistent with those taken by the Ninth and Eleventh Circuits in the following circuit split:

A split exists among the Circuits on the question of whether Hazelwood requires viewpoint neutrality. Compare Fleming v. Jefferson County Sch. Dist., 298 F.3d918, 928 (10th Cir.2002) ("We hold . . . that Hazelwood does not require educators' restrictions on school-sponsored speech to be viewpoint neutral.") and Ward v. Hickey, 996 F.2d 448, 454 (1st Cir.1993) ("[T]he Court in Kuhlmeier did not require that school regulation of school-sponsored speech to be viewpoint neutral.") with Planned Parenthood of S. Nev., Inc. v. Clark County Sch. Dist., 941 F.2d 817, 830 (9th Cir.1991) ("Because their decision to limit access, whether wise or unwise, is reasonable and not an effort at viewpoint discrimination, the school district did not violate the first amendment in declining to publish Planned Parenthood's advertisements.") and Searcey v. Harris, 888 F.2d 1314, 1319 n. 7 (11th Cir.1989) ("Hazelwood . . . does not alter the test for reasonableness in a nonpublic forum such as a school but rather provides the context in which the reasonableness of regulations should be considered. . . . [T]here is no indication that the [Hazelwood] Court intended to drastically rewrite First Amendment law to allow a school official to discriminate based on a speaker's views.") Because we conclude that Hazelwood does not apply in this case, we do not consider whether Hazelwood requires viewpoint neutrality.

Chiras v. Miller, 432 F. 3d 606, 615 n.27 (5th Cir. 2005). You may recall a similar situation in Keeton v. Anderson-Wiley, No. 10-13925 (11th Cir. Dec. 16, 2011), in which the Eleventh Circuit upheld the university’s action taken against a student counselor who refused to comply with the purported curriculum on religious grounds. It looks like Ward  and Keeton are at odds with each other, doesn't it? Not so fast, says the Sixth Circuit: “there is less tension, or for that matter even disagreement, between the two cases than initially meets the eye.”

For starters, according to the Sixth Circuit, “[t]he procedural settings of the two cases differ.” Second, “[t]he two claimants’ theories of constitutional protection also are miles apart.” Third, whereas “[i]n Keeton, the district court made preliminary fact findings after holding a[n evidentiary] hearing,” in Ward, there were “no trial-level fact findings” and Ward received “the benefit of all reasonable factual inferences in challenging the summary-judgment decision entered against her.” Fourth and finally, the Sixth Circuit draws a sharp factual distinction in Ward:

Nothing in Keeton indicates that Augusta State applied the prohibition on imposing a counselor’s values on the client in anything but an even-handed manner. Not so here, as the code of ethics, counseling norms, even the university’s own practices, seem to permit the one thing Ward sought [but was denied]: a referral.

The Sixth Circuit does, however, acknowledge that the two decisions “share the same essential framework and reasoning,” explaining,

They both apply Hazelwood to curricular speech at the university level, and they both show that the even-handed enforcement of a neutral policy is likely to steer clear of the First Amendment's free-speech and free-exercise protections. Both decisions also are consistent with Christian Legal Society, which considered whether a Christian organization at a law school could insist that its members adhere to certain faith-based codes of conduct. The Court held that the law school's anti­discrimination policy, requiring registered student organizations to accept all comers, did not violate the First Amendment on its face, yet it remanded the case to determine whether the school selectively enforced the policy against some organizations but not others. While Keeton involved Augusta State's across-the-board application of an ethical rule that prohibits counselors from imposing their values on clients, today's case reveals evidence that Eastern Michigan University selectively enforced a no-referral policy against Ward.