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Fifth Circuit Rules on Students’ Religious Speech Rights

This week, the Fifth Circuit Court of Appeals handed down an opinion for Morgan v. Swanson and upheld the First Amendment right of four Texas elementary students to hand out religious materials to their classmates.

The parents of the four Evangelical Christian children brought the lawsuit against the school’s principal and other school officials after the children were prevented, on several occasions, from handing out items like candy canes and pencils with religious messages attached. In bringing the lawsuit, the parents argued that the principal’s actions had interfered with the students’ First Amendment rights of free speech and free exercise of religion.

In an en banc hearing– where all the Circuit Court judges, rather than the usual 3-judge panel, hear and decide the case — the Fifth Circuit ruled that the First Amendment does give the students the right to pass out religious messages to their classmates and that the principal violated that right by “discriminating against student speech solely on the basis of religious viewpoint,” as Judge Jennifer Walker Elrod wrote.

The rest of the decision dealt with the concept of qualified immunity, which may shield several of the school’s officials from being held personally liable. To learn more about qualified immunity and absolute immunity, check out our page for the upcoming Supreme Court case Rehberg v. Paulk, which deals with the related issue of immunity for government officials.

Bill of Rights Institute Video on Representative Government

Do you know the difference between a democracy and a republic? Of course, the United States is a “government of the people by the people and for the people,”  but what does that mean?

The Bill of Rights Institute put together a great video on representative government that answers those questions and more. You might be surprised about how often the word “democracy” is misused and who is misusing it!

Secretary of Education Arne Duncan Announces New Private/Public Technology-Based Learning Initiative

In a Wall Street Journal Op Ed this morning, Secretary of Education Arne Duncan and Netflix CEO Reed Hastings announced a new “unique public-private partnership called Digital Promise.” Digital Promise, Duncan and Reed write, is meant “to advance breakthrough technologies that transform teaching and learning in and out of the classroom, while creating a business environment that rewards innovation and entrepreneurship.”

Digital Promise encourages a market-oriented approach to technology-based learning by mixing public money and private leadership. The ultimate goal of the partnership is to provide a “more efficient market for education technology.” Secretary Duncan notes that Digital Promise is modeled after successful companies like Netflix, which use “low-cost experimentation” to improve outputs. By using this approach, Digital Promise hopes to identify those educational technology tools which help students, and abandon those which do not.

Organizations like Digital Promise and the Susan Crown Exchange help refocus the debate over 21st Century learning. The question America’s educators should be asking is no longer whether computers should play a role in education; for better or worse, that question was long ago answered. Rather, Digital Promise focuses on finding ways to make the most efficient use of what has become an ubiquitous part of the American classroom. The Harlan Institute seeks to accomplish this same goal by using new technology to connect students with timeless constitutional lessons.

Constitution Day Presentation by David McCullough from the Constitutional Sources Project

Today is Constitution Day, which urges educators to respond to the federal mandate to teach the Constitution in their classrooms. There are a number of websites, like iCivics and the National Constitution Center, that are offering videos and games to help teachers meet this mandate in a way that engages their students.

We recommend that you check out this video lecture by David McCullough of the Constitutional Sources Project, made available at the ConSource website. In this 30 minute lecture recorded at the National Archives in Washington DC, McCullough describes how our Founding Fathers joined together “and in the midst of crisis… arrived at the words we live by.”

On behalf of Harlan Institute, Happy Constitution Day!

Supreme Court to Decide Whether GPS Tracking Constitutes an “Unreasonable Search”

This fall, the Supreme Court will hear arguments in U.S. v. Jones, a case where modern technology meets the guarantee against “unreasonable search and seizure” in the 4th Amendment. Specifically, the case raises the question: Do police need a warrant to install a GPS tracking device on a suspect’s car and monitor his behavior?

While some courts have applied the protections of the 4th Amendment to cases involving e-mail and cell phone use, the Supreme Court has yet to consider the implications of the police using common and current technology like GPS tracking.  In fact, two of the most recent precedents for this case are Kyllo v. U.S. (which held that police cannot use a thermal imaging device to “search” a suspect’s house without a warrant) and U.S. v. Knotts(a 1983 case dealing with police use of beepers).

The D.C. Court of Appeals held in this case that police must obtain a warrant before attaching a GPS device to the suspects car and tracking his movement for weeks at a time.  Other district courts, however, have held that GPS tracking is no different than the permissible practice of a police “shadow surveillance,” which involves officers staking out and tailing a suspect. These judges reason that the GPS simply allows the officer to tail an individual more efficiently, and therefore, can be done without a warrant.

The New York Times is calling U.S. v. Jones “the most important Fourth Amendment case in a decade,” and certainly the Supreme Court’s holding may have widespread effects on the ability of law enforcement to use GPS and other modern technology for the surveillance of individuals.


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