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Civic Education and Popular Constitutional Interpretation

Michael Serota has posted an interesting piece titled Civic Education and Popular Constitutional Interpretation. Serota writes about his experiences in teaching civics and constitutionalism to high school students:

Last spring, I worked with Berkeley Law’s youth justice program, and had the opportunity to teach a one-hour seminar at a local public high school on the role of the judiciary. I delivered a short lecture to a diverse group of students ages 14-18 on the basic challenges and complexities of constitutional interpretation. Thirty minutes later, the students had taken over the discussion, and they began debating some of the foundational disagreements as to how judges should interpret our founding document.

Similar experiences I have had recently working with young people through Georgetown Law School’s Street Law Clinic have reaffirmed that one need not attend law school, or even college, to appreciate the challenges of constitutional interpretation in a diverse society filled with competing viewpoints and belief systems. But to do so, the public must be willing to set aside personal preferences and join the debate on its own terms; that is, we must be willing to engage in a discussion about the process of interpretation rather than solely focusing on the results themselves.

Serota recognizes that the way we teach constitutional law to students needs to change in order to enable the next generation to fully participate in our Republic.

In order for this initiative to succeed, the focus must be on teaching the public how to think about these problems, rather than what to think about them. A seismic shift in our culture of constitutional debate will not happen overnight, but we must start somewhere, and with time, our public discussion will hopefully evolve into a thoughtful, informative, and useful dialogue that moves America forward.

These are some of the goals we hope to achieve through the Harlan Institute.

The Harlan Institute’s Inaugural SCOTUS-Skype-Teach-A-Thon

On Thursday November 11, 2010, the Harlan Institute will be virtually visiting classrooms across the country in the inaugural SCOTUS-Skype-Teach-A-Thon. As a complement to FantasySCOTUS.org, the Harlan Institute has trained a group of Mentors to deliver virtual lectures to classrooms using Skype video chats.

Our mentors consist of attorneys, law professors, and law students who are all committed to raising awareness of the Constitution and the Supreme Court. During the inaugural SCOTUS-Skype-Teach-A-Thon, mentors will engage your class and discuss the most fascinating cases before the Supreme Court this term, includingSnyder v. PhelpsSchwarzenegger v. EMANASA v. NelsonConnick v. Thompson, and Chamber of Commerce v. Whiting.

These lectures are 100% free. We are certain your students will enjoy them, and learn a lot. All your class needs is a web camera and a Skype account in the classroom. Please take a look at some of our testimonials, or watch the video below.

If you are interested is interested in participating, please sign up your class at FantasySCOTUS.org and request a mentor for your class. Please specify what time of day your class will meet on November 11, 2010, which case you would like to cover, and what grade your students are in. If you are not available on 11/11, please let us know other times that may work for you. We have a limited number of mentors available, so please sign up soon. Additionally, before the class, please share the Harlan Institute Lesson Plans with your students.


Oyez, Oyez, Oyez! FantasySCOTUS October 2011 Term Launches Today

By law, the Supreme Court’s term commences “on the first Monday in October.” At the Harlan Institute, we celebrate this holiday by launching FantasySCOTUS!

This season, we have two versions of FantasySCOTUS.

FantasySCOTUS.org is our educational Supreme Court Fantasy League geared to high school students. We have created lesson plans for some of the most interesting cases before the Court this term. Based on these plans, your students can make predictions, and write analytical blog posts about the cases. Want to learn more? Sign up for a HarlanConnect virtual mentoring program through Skype. Teachers, sign up here.

FantasySCOTUS.net is our professional Supreme Court Fantasy League for lawyers and law students. Compete against some of the most savvy court watchers in the Internet’s premier Supreme Court Fantasy League. Law nerds everywhere, sign up today!

Happy First Monday everyone!

Lesson Plan – National Aeronautics and Space Administration v. Nelson

National Aeronautics and Space Administration v. Nelson

Certiorari granted by the United States Supreme Court on March 8, 2010

Oral Arguments Scheduled for October 5 2010




The Parties

Petitioner: National Aeronautics and Space Administration (“NASA”) and the Department of Commerce
v. Respondent: Robert M. Nelson and 28 contract employees from the California Institute of Technology at Nasa’s Jet Propulsion Laboratory
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The Questions Presented

  1. Does the government violate a prospective contract employee’s right to “informational privacy” if they ask whether he or she has had counseling or treatment for illegal drugs?
  2. Does the government violate a prospective contract employee’s right to “informational privacy” when they ask the employee’s references about his or her background and work habits and outside activities?
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Case Background

NASA’s Jet Propulsion Lab & Questionnaire

Nelson and the other employees worked at NASA’s Jet Propulsion Laboratory, focusing on exploring our solar system with deep space robotics, including programs like the Mars Lander and Mars Rover.  As contract employees, NASA wanted the employees to be subject to the same personnel investigation as civil service employees in order to prevent vulnerability to terror attacks.  The personnel investigation included a questionnaire that asked the employees about any treatment or counseling that they may have received for illegal drug use within the past year.  The questionnaire further required that the employees authorize the government to seek information from any source about any negative information relevant to the employee’s work habits or activities related to their truthfulness, finances, and alcohol or drug use.  The employees filed suit, arguing that the questions amounted to a violation of their constitutional right to informational privacy.  The government maintained that these background searches are routine, and have always been a necessary part of civil service employment.

At the District Court

The plaintiffs moved for a preliminary injunction, which means that they asked the court to prevent the use of the questionnaires pending the outcome of the litigation. The district court denied this request on the grounds that the questionnaires served a legitimate government interest, and were narrowly tailored with adequate safeguards to protect the applicants’ personal information.

Opinion of the Court of Appeals

The Ninth Circuit ordered NASA to stop using certain questions from the questionnaires.  The court determined that NASA could ask about prior drug use and possession, but could not ask about any treatment the employees had received for their drug habits.  The Ninth Circuit also decided that the question asking for authorization to investigate the employees’ backgrounds violated their constitutional rights.  In the court’s view, the government had no legitimate reason to ask these questions.  The court found that these invasive questions implicated the constitutional right to informational privacy, meaning the interest in keeping personal information about oneself private.

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The Law

The Fourth Amendment to the Constitution of the United States of America

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.

The Fifth Amendment to the Constitution of the United States of America

No person shall be . . . deprived of life, liberty, or property, without due process of law.

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Relevant Precedents

Whalen v. Roe, 429 U.S. 589 (1977)

The State of New York required a centralized filing system for all prescriptions of controlled substances, including the names and addresses of the patients who received the medications.  The Court held that the law was constitutional as it contained adequate measures to protect individual privacy.  The Court stated that there are two kinds of privacy interests protected by the Constitution: the interest in avoiding disclosure of personal matters, and the interest in making personal decisions.  The Court noted, however, that certain disclosures to medical personnel were essential to modern medical practice.


Nixon v. Administrator of General Services, 433 U.S. 425 (1977)

Former President Nixon challenged an order to turn over presidential papers and tape recordings from the Oval Office.  Nixon asserted that his right to privacy was invaded by the law requiring that the papers and recordings be turned over.  The Court determined that Nixon’s right to privacy was not violated by the law.  Although he could correctly claim that papers and conversations relating to his wife, family, physician, lawyer, and clergy were protected, this was only a small fraction of his files, and they were removed through a careful screening process.

Engquist v. Oregon Department of Agriculture, 128 S.Ct. 2146 (2008)

In Engquist, a public employee filed suit alleging discrimination.  The Court held that the government has a legitimate interest in promoting efficiency and integrity in discharge of official duties, and in maintaining proper discipline.  Government employees do not lose their rights by becoming federal employees, but they must be balanced against the realities of the employment context.

Board Of County Commissioners v. Umbehr, 518 U.S. 668 (1996)

The Court held that a contract employee of the government was protected by the First Amendment against being fired for exercising his right to free speech.  In such cases, the government’s interest as contractor must be balanced against the free speech rights of the contract employee.

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Justice Voting History

This chart could help with predicting the outcome of the case and how the Justices will vote. But be
careful: a lot will depend on the facts of this case and not how someone has voted in the past. [Note: the Justices are listed in order of seniority with the Chief Justice first.]

Engquist v. Oregon Dept. of Agriculture (2008) Bd. of County Comm’rs v. Umbehr (1996)
Roberts C Not yet on Court
Scalia C C
Kennedy C NC
Thomas C C
Ginsburg NC NC
Breyer C NC
Alito C Not yet on Court
Sotomayor Not yet on Court Not yet on Court
Kagan Not yet on Court Not yet on Court
C The Justice voted that the firing was constutional.
NC The Justice voted that the firing was unconstutional.
Not yet on Court The Justice was either not yet on the Court when the case was decided.

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The Arguments

NASA (Petitioner)

The government argues that they are required by presidential directive to conduct background investigations before approving contract employees to work at federal facilities.  They have required such investigations since 1953.

The government states that the Ninth Circuit erred because informational privacy rights are limited by a government interest in gathering necessary information, even when the information may be embarrassing.  In these cases, privacy concerns can be resolved in other ways, but the government needs the information in order to know whether to trust the employee to work at a sensitive facility like the Jet Propulsion Laboratory.  With respect to the request for authorization to investigate the employee’s background by talking to references, the government says there is no expectation of privacy at all because the information has already been voluntarily revealed to a third party (the reference).

Nelson (Respondent)

The employees argue that they were compelled to either answer the questionnaire or accept the severe hardship of losing their jobs.  They point out that NASA had classified their work as low risk, and that they were already vetted before their initial hire with a criminal background and references check.

The right to informational privacy, the employees argue, protects an individual interest in avoiding disclosure of personal matters.  That information need only be disclosed if the government can show a legitimate state interest and sufficiently tailored means to obtaining that necessary information.  The questions on the form, they argue, are too broad and are designed to elicit a wide range of material that the government does not really need.

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Blog Topics

How much privacy is enough?

Is it important for employers to have the information they need to ensure that operations can be carried out safely and securely?  If so, what should employers be allowed to ask of potential employees?  How should the courts determine how much information is enough?

Couldn’t employees just quit rather than disclose private information?

If the employees really do not want to give the government this information about themselves, they can always quit their jobs.  Is that a satisfactory solution?  Perhaps the government should have more leeway in gathering information about its own employees than about ordinary citizens.  But does that give the government too much power, given that so many people today work for the government?

The right to “informational privacy” is not listed in the Constitution. Should this unenumerated right be protected?

The right to “informational privacy” is not contained in the Constitution, at least not in those words.  The Ninth Circuit relied on, among other things, the Fourth Amendment, which is reprinted for you above.  Re-read the words of the Fourth Amendment.  Is it reasonable to read the Amendment as protecting employees from answering personal questions?  Or did the court stretch too far?

Past Drug Use

Does the government need to know whether its employees used drugs in the past, even if they are not using drugs now?  Does drug use reflect on an employee’s judgment or trustworthiness?  What if someone could blackmail the employee by threatening to reveal his past drug habits unless he turned over sensitive government information?

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Additional Resources

  • Full opinion of the U.S. Court of Appeals for the Ninth Circuit
  • Docket information at the Supreme Court:  This page will be updated as more briefs are filed.
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FantasySCOTUS.org Rules OT 2010

Welcome to FantasySCOTUS, the Internet’s Premier Fantasy Supreme Court League. FantasySCOTUS challenges students to make predictions about pending Supreme Court cases and write analytical blog posts exploring the different constitutional issues in the cases.

Who Can Play?

FantasySCOTUS is designed for high school government, civics, history, political science, social studies, and even writing classes. Advanced middle school students are welcome to play. Teachers should sign up their classes, and add or invite their students to join. Additionally, extra-curricular clubs, such as debate teams, mock trial teams, and other organizations, are able to join. Just ask your faculty advisor sign up your group.

How to Play?

The goal of FantasySCOTUS is simple. It encourages students to learn about cases pending before the Supreme Court. Students will write analytical blog posts exploring the constitutional issues in these cases, and based on this knowledge, make predictions about how each of the nine Justices will vote. Blog posts can be written by individual students, groups of students, or by the entire class. One set of predictions will be submitted based on the class consensus, though individual students can submit predictions that will not be used in the scoring process.

All predictions and blog posts will be due by January 31, 2010. The winner will be announced at the conclusion of the October 2010 Supreme Court term when all of the cases have been decided.

The Cases

The Harlan Institute has selected five cases of interest for students that are currently pending before the United States Supreme Cour, and created lesson plans for each case:

  • Snyder v. Phelps – Does the First Amendment protect the right of protestors to display signs containing offensive messages about gay people near funerals of fallen military service members?
  • National Aeronautics and Space Administration v. Nelson – Does the government violate a prospective contract employee’s right to “informational privacy” if they ask whether he or she has had counseling or treatment for illegal drug?
  • Connick v. Thompson – A Defendant, who was convicted of a murder, was later released from prison after his attorneys found exculpatory evidence that the government did not show him. Can the defendant sue the district attorney’s office for failing to properly train prosecutors to properly disclose exculpatory evidence?
  • Schwarzenegger v. Entertainment Media Association – Does the First Amendment bar California from restricting the sale of violent video games to children?
  • Chamber of Commerce of the United States v. Candelaria – A federal law says that States cannot impose sanctions on employers who hire illegal aliens.  Arizona passed the Legal Arizona Workers Act, which says that companies that hire illegal aliens can have their business licenses revoked.  Does the federal law trump the state law?

Each plan will provide a plain English explanation of the parties involved, the question presented, the background of the case, the opinion of the lower court, and the competing arguments of the Petitioner and the Respondent. Following this background information, the lesson plan will discuss all relevant constitutional provisions, statutes, precedents, and other relevant information needed to understand the case pending before the Supreme Court.

Predictions and Points

For each case, your class will predict how each of the nine Justices of the Supreme Court will vote.  A Justice can either vote to AFFIRMREVERSE the lower court, or RECUSE from the case and not cast a vote. For each correct guess, you will receive 10 points.If your class correctly guesses the votes all nine Justices, you will receive a 10-point bonus, for a perfect score of 100 points.

For example, in Schwarzenegger v. Entertainment Media Association, the Court of Appeals for the Ninth Circuit found that statute barring the sale of violent video games to children was unconstitutional. Your class predict that Justices Roberts, Scalia, Kennedy, Thomas, and Alito will vote to reverse the Ninth Circuit, and that Justices Ginsburg, Breyer, Sotomayor, and Kagan will vote to affirm, or agree with the Ninth Circuit. Assume your class’ predictions are correct, except for Justice Kennedy, who in fact voted to affirm the lower court.

Roberts Scalia Kennedy Thomas Ginsburg Breyer Alito Sotomayor Kagan
Predicted Vote Reverse Reverse Reverse Reverse Affirm Affirm Reverse Affirm Affirm
Actual Vote Reverse Reverse Affirm Reverse Affirm Affirm Reverse Affirm Affirm
Points 10 10 0 10 10 10 10 10 10

In this case your class will receive a total of 80 points because you correctly predicted 8 out of the 9 Justices (you failed to correctly predict the vote of Justice Kennedy).

If your class correctly predicts all five cases, you will receive a perfect score of 500 points.

Blogs Posts and Badges

In addition to making predictions, each class will write a series of analytical blog posts for each case.  By signing up your class, you will automatically receive a free WordPress blog hosted at the Harlan Institute. Each case will have approximately five blog posts. Here are some possible topics:

  • Write a post summarizing the facts of the case
  • Pretend your class is the Supreme Court and write your own opinions, including concurring and dissenting opinions
  • Explain why the First Amendment guarantee of Free Speech should prevent censorship of violent video games, but permit the criminalization of certain types of “hate speech.”

Please visit the sample blog, Harlan High School, for examples of what the blog posts should look like.

For each submitted blog post, your class will be awarded a FantasySCOTUS Badge. Each badge will have a corresponding number of points, based on the level of difficulty of the assignment. The more badges you receive, the more points you score!

View all of the badges available here.


The Winners

The winner of FantasySCOTUS will be determined based on the class with the most points.

All classes are placed into leagues based on the geographic location of the Circuit Court of Appeals of the United States.

* While the District of Columbia is in the Court of Appeals for the District of Columbia, for the purposes of this competition, the D.C. will be placed in the 4th Circuit.

The team with the most points in each Circuit will be awarded the “Chief Judge” Prize. There will be one “Chief Judge” per grade for each Circuit. The top class in the United States will be awarded the “Chief Justice” Prize. Awards for the Chief Judge and Chief Justice will be determined later in the year.

The Harlan Institute

Learn more about the Harlan Institute.