From the Controversy in the Classroom forum column of the May 2010 issue of Perspectives on History
Taking the Court into the Classroom
Using Legal Cases to Discuss Controversial Topics
Noting the interaction between American politics and our courts, a Frenchman visiting the U.S. in the early 1800s made a perceptive observation: “There is hardly a political question in the United States which does not sooner or later turn into a judicial one.”
Prayer in public schools? Try Engle v. Vitale. The right to own a gun? Read District of Columbia v. Heller. A march by neo-Nazis in a predominantly Jewish Chicago suburb? Peruse National Socialist Party of America v. Village of Skokie. Abortion rights? Study Roe v. Wade. The powers of the police? Analyze Mapp v. Ohio, Miranda v. Arizona, Terry v. Ohio, and so on; the list can be quite long.
Perhaps Alexis de Tocqueville was on to something.
Like most teachers in the humanities, I am often confronted with a common problem: How do we discuss controversial topics in the classroom without alienating at least some of the students or discouraging viewpoints that may be at odds with a majority of the class?
To address this dilemma, I have been utilizing a classroom exercise not only to inform students about important and topical issues but also to get them involved in the debate.
One of the prerequisites to passing the U.S. history survey courses I teach is the requirement that each student read and report on—both in writing and orally—an assigned Supreme Court case. Like the Court itself, the legal disputes assigned cover many controversial topics.
Having completed individual written assignments about their assigned case during the first weeks of the semester, each student presents the facts during oral presentations. Once the difference of opinion (and law) is outlined, the merits of both sides are weighed by fellow students utilizing personal opinion, prior experience, and, of course, the text of the Constitution.
The facts of each case, as well as the opinions and dissents, all provide something many find lacking in discussions about important issues today: Articulate and clearly developed arguments. Using the writings of the justices themselves provides students with both sides of an issue and instructors an innovative way to encourage the discussion of controversial topics in the classroom.
Allowing students to control, in part, the content of instruction for their colleagues naturally facilitates student participation and encourages informed debate.
As an added benefit, the case content allows the instructor the benefit of remaining “above” the debate, presenting each side of the controversy not in the personal (and potentially alienating) perspective of the instructor but the desired outcome of each participant.
Many students I encounter in the classroom find in my syllabus the first real engagement they have with how the Supreme Court actually works. For them, the narratives of average citizens and their interaction with the Court are inspiring. New to the study of law and its real-world implications, students quickly come to the realization that the Court’s docket is full of individuals who are not plucked from lofty pedestals or enshrined in some preordained place in the past.
When Clarence Earl Gideon was charged with burglary in Florida, he was forced to defend himself in court because of the state’s narrow interpretation of the right to counsel. Susette Kelo refused to quit when the local government seized and gave to private developers the pink house she worked hard to make into a home. And, of course, there is Linda Brown. An elementary school student in Topeka, Kansas, who had to travel over one mile from her home to the building designated for African Americans when the whites-only facility was just blocks away.1
The list of these and other tales of jurisprudential bravery of ordinary citizens seems endless. In helping to further define the balance between government power and individual rights as citizens, inspiration can often be found in the “normalcy” of the parties involved—whether we agree or disagree with the position they take on the legal issues.
There are, however, obstacles to such an exercise.
When Alexander Hamilton wrote in 1788 that the judiciary was the “least dangerous” branch of the national government, could this influential New Yorker have possibly envisioned that it would today be instead the least understood?2
A survey was conducted recently by C-Span to gauge the knowledge Americans have about the Supreme Court. The results were disheartening but no real revelation to those who teach about the federal courts. Fewer than half the participants correctly identified the current number of justices on the bench (nine), nearly one-quarter did not know the tenure of justices (life) and 45 percent were unable to name a single case decided by the highest court in the land.3
In addition to the dearth of prior knowledge of the Constitution and the Court, too many students have been programmed to be unengaged in the classroom. Students “are used to being passive recipients in class,” cautions Wilbert McKeachie in McKeachie’s Teaching Tips, a useful resource for those new to the undergraduate classroom. It is the responsibility of the instructor to “create a climate in which an important contribution is not lost because the person with the necessary idea did not feel free to express it.”4
Empowerment of student-led discussions is one way to address this problem, transforming many from dormant observers into active participants in each of the cases we examine.
Educators confronted with this dismal state of affairs are not alone in their situation or in their desire to find a remedy. After retiring from the Supreme Court in 2006, former Justice Sandra Day O’Connor complained openly about the lack of civics education in our schools. And then proceeded to do something about it. OurCourts.org, the web site she launched, is a valuable tool to introduce young students to American government and how it works.
Others are also engaged in the struggle to save our students from a continuing decline in knowledge about our founding principles and documents. One such organization, the Institute for Constitutional History, promotes the teaching of the U.S. Constitution in undergraduate and graduate programs by hosting seminars and lectures with leading scholars in the field and publishing relevant literature.
There is an obvious relevance found in the study of our constitutional rights. Yet students during this exercise are genuinely surprised to learn that the individual liberties Americans hold so dear were not spelled out in language that was clear cut. For them, the cases become an important link between the past and the present when they discover that many terms in the U.S. Constitution are vague.
What exactly is an “unreasonable” search or seizure? Who says when a particular form of punishment is “cruel and unusual?” What is the criterion to define “public use” in eminent domain cases? Are the freedoms of religion, speech, the press, and assembly absolute rights or can they be restricted by lawmakers?
Despite relative unfamiliarity, the Supreme Court remains a unique teaching resource, vividly available in the imagination of any educator looking to generate a discussion about one or more important issues. It is a forum where the most passionate arguments are made for and against nearly every topic of concern to us as citizens.
It is our job as educators to make students aware that only by increasing their knowledge about their own rights can they play a proper civic role as well.
James Coll is an adjunct professor of history at Nassau and Suffolk Community Colleges on Long Island in New York. He is also a detective in the New York City Police Department.
3. C-Span, “C-Span Supreme Court Survey,” www.c-span.org/pdf/C-SPAN%20Supreme%20Court%20Online%20Survey_070909_6pm.pdf.
Copyright © American Historical AssociationLast Updated: April 22, 2010 12:22 PM