How has the Burger/Rehnquist Court effected the issue of rights in America?
Just as the Warren court had sought to define the protections of
fundamental rights, so did the two Chief Justices after him; Warren
Berger and William Rehnquist. The Berger and Rehnquist courts have
also issued landmark decisions that have shaped our democracy.
NY Times v United States – 1971 –
Freedom of the Press
The New York Times received secret info about the
US involvement in the Vietnam War, specifically what had “really”
happened at the Gulf of Tonkin. It turned out that the President had
exaggerated the incident and used that exaggeration to gain increased
war powers form congress (the Gulf of Tonkin Resolution). The New
York Times sought to publish the information and the government
attempted to get an injunction barring them from going to press with
it. The Times sued claiming that the government was infringing upon
their first amendment right of freedom of speech. The government
claimed that a limitation of that right was in order because it was
dangerous to the security of the nation.
The court affirmed the position of the New York
Times. The court ruled that the information did not represent a clear
and present danger to national security and that the governments
attempt to suppress the information was an attempt at censorship and
a violation of first amendment rights to freedom of the press.
United States v. Nixon – 1972 – Prsidential
In the late 1970’s, the Democratic National
Headquarters at the Watergate Office Building in Washington, D.C.,
was broken into. The investigation that followed centered on staff
members of then Republican President Richard M. Nixon. The Special
Prosecutor subpoenaed certain tapes and documents of specific
meetings held in the White House. The President’s lawyer sought to
deny the subpoena. The Special Prosecutor asked the Supreme Court of
the United States to hear the case before the lower appeals court
ruled on the President’s appeal to deny the subpoena.
By an 80 vote, the Court decided that
President Nixon must hand over the specific tapes and documents to
the Special Prosecutor. Presidential power is not above the law. It
cannot protect evidence that may be used in a criminal trial.
Bakke v University of California Bored of
Regents – 1976 – Civil Rights
Alan Bakke, an engineer with high grades, applied
to several medical schools in the hopes of one day becoming a doctor.
Bakke was rejected by all of the schools he applied to but the
University of California at Davis encouraged him to apply again. The
next year Bakke again applied and was again rejected. Bakke then
found out that the University’s affirmative action program reserved
17 places for minority candidates regardless of qualifications. Bakke
sued the University claiming that he was the victim of “reverse
discrimination.” The university argued that the creation of quotas
was needed to ensure minority admission to college under their
affirmative action program.
In a two part ruling the court ordered Bakke to be
admitted to medical school. The court ruled that Bakke had, in fact,
been discriminated against. The court did, however, uphold the
legality of affirmative action programs. The court cited Harvard
Universities affirmative action program that created guidelines for
admission rather than strict quotas.
Island Trees School District v. Pico – 1982 –
Freedom of Speech
The Board of Education of the Island Trees School
District in New York directed the removal of nine books from the
libraries of the Island Trees senior and junior high schools because
in the Board’s opinion the books were “antiAmerican,
antiChristian, antiSemitic, and just plain filthy.” Some
books included were: The Fixer, Soulon Ice, Slaughterhouse Five, Go
AskAlice, The Best Stories by Negro Writers, and others. Four
students from the high school and one from the junior high school
sued the school district, claiming that the removal of the books was
a violation of the First Amendment’s guarantee of freedom of speech.
The Supreme Court of the United States ruled in
favor of the students, saying that the books were not required
reading. According to Justice Brennan, who cited West Virginia Board
of Education v. Bamette, 319 U.S.624 (1943), “Local school boards may
not remove books from school library shelves simply because they
dislike the ideas contained in these books and seek by their removal
to prescribe what shall be orthodox in politics, nationalism,
religion, or other matters of opinion.” He also cited Tinker v. Des
Moines School District, 393 U.S.503 (1969), saying that high school
students have First Amendment rights in the classroom. Although the
schools have a right to determine the content of their libraries,
they may not interfere with a student’s right to learn. Therefore,
the schools may not control their libraries in a manner that results
in a narrow, partisan view of certain matters of opinion. The Court
stood against the removal or suppression of ideas in schools.
New Jersey v T.L.O – 1985 – Search and Seizure
/ Students Rights
Two students were found smoking in the girls
bathroom. One student confessed but the other, T.L.O. (her initials),
denied smoking. In fact, T.L.O. claimed she did not smoke at all. The
school Assistant Principal then proceeded to search T.L.O.’s purse.
In the purse he found Marijuana in small bags, rolling paper, a large
amount of cash and a list of names who owed T.L.O. money. The police
were summoned and T.L.O. was arrested. T.L.O. was convicted and
through the appeals process the case eventually went to the Supreme
Court. T.L.O. claimed that the search of her purse violated her
The Court ruled against T.L.O. setting new
standards for school officials. The Court ruled that school officials
may search a student under “reasonable suspicion.” The standard is
less than that required of police therefore giving school officials
much broader search powers under the fourth amendment.
Bethel School District v Fraser – 1986 -Free
Speech / Students Rights
Matthew Fraser, a high school student in Bethel,
Washington, delivered a speech nominating a fellow student for a
student elective office. The speech was made during school hours as a
part of a school-sponsored educational program in self-government.
The voluntary assembly was attended by about 600 students, many of
whom were 14-year-olds. Throughout the speech, the student
deliberately referred to his candidate in terms of an elaborate and
explicit sexual metaphor. The reactions of the students varied from
enthusiastic hooting and yelling to embarrassment and bewilderment.
Before the speech, the student had discussed it with several
teachers, and two teachers told him they thought it was not
appropriate. The student was suspended for three days for having
violated the school’s “disruptive conduct” rule, which prohibited
conduct that substantially interfered with the educational process,
including the use of obscene, profane language or gestures.
The U.S. Supreme Court held that the school board
acted entirely within its permissible authority in punishing Fraser
for “his offensively lewd and indecent speech.” This was not a
situation where Fraser was sanctioned for expressing a political
viewpoint as in the Tinker “armband” case; the sexual innuendo was
incidental to the merits of the candidate who was being nominated.
“It is a highly appropriate function of public school education to
prohibit the use of vulgar and offensive terms in public discourse .
. . Schools must teach by example the shared values of a civilized
The Court repeated its recognition of an interest
in protecting minors from exposure to vulgar and offensive spoken
language. Even in a heated political discourse among adults, the
Court emphasized the need for consideration for the personal
sensibilities of the audience. “A high school assembly or classroom
is no place for a sexually explicit monologue directed towards an
unsuspecting audience of teenage students.” The Court also stated
that the school regulation and the negative reactions of two teachers
gave Fraser sufficient notice that his speech might result in his
Roe v Wade – 1973 – Right To Privacy
Norma McCorvey, a citizen of Texas, was pregnant
and wanted to have an abortion. Texas state laws (and most other
states) made abortion illegal in that state. Suing under the name
Jane Roe she claimed that the state of Texas violated her right to
privacy by prohibiting the abortion and telling her what to do with
her own body. The state argued that abortion was murder and that
there was a compelling state interest in protecting the life of the
In this landmark decision the Court declared that
laws prohibiting abortion represented a violation of a women’s right
to privacy. While the right to privacy does to exist as such in the
Constitution it has long been interpreted to exist as an umbrella
created by the first 5 amendments in the Bill of Rights. By creating
this precedent abortion became legal in all 50 states.
Hazelwood School District v.
Kuhlmeier – 1988
– Censorship/State Rights v. Students’ Free Press Rights
Kathy Kuhimeier and two other journalism students
wrote articles on pregnancy and divorce for their school newspaper.
Their teacher submitted page proofs to the principal for approval.
The principal objected to the articles because he felt that the
students described in the article on pregnancy, although not named,
could be identified, and the father discussed in the article on
divorce was not allowed to respond to the derogatory article. The
principal also said that the language used was not appropriate for
younger students. When the newspaper was printed, two pages
containing the articles in question as well as four otherarticles
approved by the principal were deleted.
The Supreme Court of the United States held that
the Hazelwood School District did not violate the First Amendment
right of the students. The Court ruled that School officials need not
tolerate speech which is inconsistent with the school’s basic
educational mission. The Court distinguished this case from the
Tinker decision (school officials could not punish students for
wearing armbands in protest of the Vietnam war “students do not shed
their constitutional rights at the schoolhouse gate”) because the
Tinker case involved a student’s personal expression. This was,
instead, a school newspaper, and as such could reasonably be
perceived to bear the “imprimatur” of the school. They justified this
because the publication of Spectrum was a part of the curriculum,
i.e., it was in the curriculum guide as a part of the Journalism
course, it was taught during school hours by a faculty member, the
students received grades and academic credit, the faculty advisor
exercised control over the publication, and the principal had to
review it. The school’s policies did not reflect an intent to expand
the students’ rights by converting a curricular newspaper into a
public forum. The court further added that the principal’s fears were
reasonable: he was concerned that the students’ identities could not
be assured, that the privacy interests of boyfriends and parents were
not adequately protected, and that parents mentioned in the divorce
article were not given an opportunity to defend themselves.
Texas v. Johnson – 1989 – Freedom of
Outside the Republican National Convention in
Dallas, a protest of Ronald Reagan’s policies had been organized,
during which a United States flag was burned. Johnson, the man
responsible for the flag burning, was arrested under Texas law, which
made the desecration of the United States or Texas flags crimes.
Johnson was convicted and sentenced to one year in jail and a two
thousand dollar fine. Texas reasoned that the police were preventing
the breach of peace that would be erupt due to the flagburning, and
preserving the integrity of the flag as a symbol of national unity.
Johnson’s conviction was overturned by theSupreme Court of Texas,
which ruled that this mode of self-expression was protected under the
First Amendment to theConstitution. The Supreme Court upheld this
ruling, stating the flag burning was “expressive conduct” because it
was an attemptto “convey a particularized message.”