Selective Incorporation

Selective Incorporation

Selective Incorporation

• The Bill of Rights originally applied ONLY to the US government.

• People had no protections from STATE governments.

• The Bill of Rights was applied to the States, one court case at a time, or selectively incorporated.

Watch the video on the next page for a more thorough explanation

Carey LaManna - AP Gov Teacher

https://www.youtube.com/watch?v=IOs0v2rZg9c

College Board has chosen FIVE cases for you to know.

Take some notes on each and come up with a memory device for each. It can be verbal or visual

Engel v. Vitale (1962)

School sponsorship of religious activities violates the establishment clause.

The Establishment Clause:

Comes from the First Amendment.

This clause forbids the government from establishing an official religion

It also prohibits government actions that unduly favor one religion over another.

Engel V. Vitale

• The official recitation of prayers in public schools violates the Establishment Clause.

• In other words - the school cannot require students to pray in school.

Pros & Cons:

SUPPORTERS: Victory for religious freedom

DETRACTORS: Undermines the religious traditions of the US.

Multiple Choice

Engel v. Vitale incorporates WHICH clause?

• 1st Amendment: Establishment Clause

• 1st Amendment: Free Exercise Clause

• 1st Amendment: Free Speech

• 5th Amendment: Equal Protection

Multiple Choice

School sponsorship of religious activities (teacher led / directed prayer) violates the establishment clause

• Tinker v. Des Moines

• Engel v. Vitale

• Wisconsin v. Yoder

• Schenck v. United States

Poll

How well do you understand the Establishment Clause and Engel v. Vitale? Ok to choose more than one answer.

• Both are super clear.

• I understand the Establishment Clause.

• I understand Engel v. Vitale.

• Neither of them makes much sense.

Wisconsin v. Yoder

Compelling Amish students to attend school past the eighth grade violates the free exercise clause.

The Free Exercise Clause

In the First Amendment, Congress may make no law that permits the Free Exercise of Religion.

Amish Way of Life

Simple living, plain dress, and no technology. They use windmills, drive horses and buggies, and refrain from modern technology.

Required High School Attendance violates the Free Exercise Clause

Three Amish parents wanted their students to stop attending public schools after the eighth grade.

In other words...

• High School taught ideas and concepts incompatible with the Amish religion.

• This interfered with the free exercise of the Amish religion.

Holding...

the values and programs of secondary school were "in sharp conflict with the fundamental mode of life mandated by the Amish religion," and that an additional one or two years of high school would not produce the benefits of public education cited by Wisconsin to justify the law.

Multiple Choice

What Supreme Court case said that the government could not make Amish parents send their kids to school past the 8th grade?

• Reynolds v. United States
• Wisconsin v. Yoder
• Oregon v. Smith
• Engle v. Vitale

Multiple Choice

The Freedom of Religion can be found in what amendment?

• 4th Amendment
• 19th Amendment
• 1st Amendment
• The Freedom of Religion is not an amendment

Multiple Choice

What provision of the constitution says that Congress can make no law that hinders a person's ability to practice their religion?

• Free Exercise Clause
• Establishment Clause
• Elastic Clause
• Supremacy Clause

Poll

I understand the Free Exercise Clause and Wisconsin v. Yoder

• I understand both.

• I have questions about the Free Exercise Clause.

• I have questions about Wisconsin v. Yoder

• I do not understand either one very well.

Tinker v. Des Moines Independent Community School District (1969)

Public school students have the right to wear black armbands in school to protest the Vietnam War.

Vietnam War Protests

• Mary Beth Tinker wore a black armband to school to protest the War.

• She was suspended from school for her advocacy.

Their parents sued

Claiming that their freedom of expression was violated.

• Armbands were pure speech

• Students did not lose their First Amendment rights to freedom of speech when they stepped onto school property.

Implications for School Officials

• School officials must be able to prove that the conduct in question would "materially and substantially interfere" with the operation of the school.

• They suspended students in ANTICIPATION of disruption and that violated freedom of expression.

Multiple Choice

What two ammendments pertained to the case?

• second and tenth amendments

• first and second amendments

• four and fourteenth amendments

• first and fourteen amendments

Multiple Choice

The District Court and the Court of Appeals upheld the principle that

• school officials could limit students’ rights to prevent possible interference with school activities.

• students’ individual rights were subject to the higher school authority while on school grounds.

• free speech was a privilege to be exercised discreetly and within the guidelines set by the school.

• allowing political expression on school grounds could impinge upon the rights and beliefs of other students.

Multiple Choice

When can a school limit student speech?

• When the act fails the "disruption test".

• When the expression offends the teacher.

• When parents get annoyed.

Multiple Choice

What was the Supreme Court's response to siding with the students and parents?

• The first amendment is irrelevant to this case.

• Parents and students have a stronger say in decisions than schools.

• Students have unlimited rights in expression.

• Students and teachers don't shed their constitutional rights to freedom of speech or expression.

Multiple Choice

Who did the courts side with?

• The school district.

• The parents and students.

Multiple Choice

What was the issue in Tinker v. Des Moines (1969)?

• The students and parents sued the school district claiming a violation of their first Amendment right of freedom of speech.

• The school district wanted to search the bags of the students.

• The parents did not want their children wearing black arm bands in school.

• The students felt that their freedom of religion was violated.

Multiple Choice

What was the issue in Tinker v. Des Moines (1969)?

• The students and parents sued the school district claiming a violation of their first Amendment right of freedom of speech.

• The school district wanted to search the bags of the students.

• The parents did not want their children wearing black arm bands in school.

• The students felt that their freedom of religion was violated.

Poll

How well do you understand the freedom of expression?

• I understand Tinker v. Des Moines

• I have some questions about Tinker v. Des Moines

• I understand when students can exercise their 1st A rights in school

• I do not understand when & why student speech is limited.

New York Times Co. V. US (1971)

This case bolstered the freedom of the press, establishing a "heavy presumption against prior restraint" even in cases involving national security.

Prior Restraint

Means that someone has the right to stop a new publication from printing accurate (but embarrassing) information.

The Pentagon Papers

• The Nixon Administration wanted to stop the New York Times & the Washington Post from publishing embarrassing information about the Vietnam War.

Freedom of the Press

Embarrassing information is not enough to abrogate freedom of the press.

Schenck v. US (1919)

Speech creating a "clear and present danger" is not protected by the First Amendment

Resisting WWI Draft

• Socialists Charles Schenck and Elizabeth Baer distributed leaflets encouraging men to resist the draft.

• They declared the draft violated the Thirteenth Amendment prohibition against involuntary servitude.

• They advocated peaceful action.

Deference to the Government

• SCOTUS ruled that courts owed greater deference to the government during wartime.

• The First Amendment does not protect speech that approaches creating a clear and present danger of a significant evil that Congress has power to prevent. 

• 
  

Famous saying - "You can't yell FIRE in a crowded theater!"

Freedom of Speech is not unlimited.

• Speech that constitutes a "Clear and Present Danger" is unconstitutional.

• 
  

Schenck v. US - no longer fully in effect

• Freedom of speech is more protected today.

• Brandenburg v. Ohio partly overturned it.

Multiple Choice

What case held that expressions that resulted in a "clear & present danger" could be punished?

• Schenck v. U.S.
• Mendez v. Westminster
• White v. Regester
• Edgewood v. Kirby

Multiple Choice

The Pentagon Papers case; Daniel Ellsberg release classified documents about the Vietnam War for publication; Nixon tries to stop the papers from publishing the documents.

• U.S. v. Nixon

• Washington Post v. Nixon

• New York Times v. United States

• Woodward v. Bernstein

Multiple Choice

An American Socialist distributes pamphlets discouraging young men from signing up for the draft during WW1.

• Tinker v. Des Moines

• Brandenburg v. Ohio

• McDonald v. Chicago

• Schenck v. United States

Multiple Choice

Taken together, Tinker, Schenck, and the NYT cases all show that...

• Freedom of speech is protect but not unlimited

• Freedom of speech is the most protected speech

• Freedom of speech can be limited during wartime

• SCOTUS protects the right of the government to censor students, Communists, and newspspers

Review the concepts of these First Amendment cases related to Selective Incorporation

Multiple Choice

Facts: Facts: In the early 1960s, a group of Jewish families in New York brought suit against their children’s school district for imposing prayer in the classroom The New York court of Appeals upheld school prayer before the families took the case to the Supreme Court.

• Marbury v. Madison

• McCulloch v. Maryland

• Schneck v. United States

• Engel v Vitale

Multiple Select

LOR-2: Provisions of the U.S. Constitution’s Bill of Rights are continually being interpreted to balance the power of government and the civil liberties of individuals. (pick 2)

• Marbury v. Madison

• McCulloch v. Maryland

• Schneck v. United States,

• Engel v Vitale

Multiple Select

LOR-2: Provisions of the U.S. Constitution’s Bill of Rights are continually being interpreted to balance the power of government and the civil liberties of individuals. (pick 2)

• Marbury v. Madison

• McCulloch v. Maryland

• Schneck v. United States,

• Engel v Vitale

Multiple Choice

The test used to determine if state aid to religious schools violates the Establishment Clause is called the

• clear and present danger test

• castle doctrine

• Lemon test

• Miranda rule

Multiple Choice

SCOTUS rules that a non-denominational prayer provided by the New York Board of Regents violated the 1st Amendment Establishment clause.

• New York Times v. United States

• Engel v. Vitale

• Brown v. Board of Education

• Schenck v. United States

Multiple Choice

This clause of the First Amendment prevents the government from creating a national religion, nor may it sanction or favor a religion.

• Due Process Clause

• Establishment Clause

• Free Exercise Clause

• Elastic Clause

Poll

Overall, how did this go?

• It was helpful to see 1st A cases together.

• I am confused about how the 1st A works.

• This helped me to understand required SCOTUS cases

• I understand this well.

• I am confused about selective incorporation

Open Ended

Write your NAME and a question or comment that you have.