Law Wise • 2015-16 (No. 6)

PUBLISHED BY

LAW WISE APRIL/MAY 2016 • ISSUE 6

Editor: Ron Keefover Coordinators: Hon. G. Joseph Pierron Jr. • Anne Woods, Jennifer Salva, & Ryan Purcell, KBA staff

Greetings from the Kansas Bar Association (KBA).

Welcome to this edition of Law Wise and the sixth edition of the 2015-2016 school year.

IN THIS ISSUE Johnson County First Amendment Foundation Continues Its Mission To Promote Better Understanding of Constitution for Kansas Students....................................................... 1 Johnson County First Amendment Center Engaged In Numerous Civic Education Outreach Programs...................................... 3 “You Be the Judge” Session on U.S. Supreme Court – A favorite in Kansas Schools............ 5 You be the Judge: A Presenter’s Perspective..... 6 Terrific Technology for Teachers....................... 7 2016 Mock Trial Tournament Update............... 7 Dear Readers: NEW Law Wise Group.............. 7 Lesson Plan: Do Students Have the Right to Read?........... 8

Calendar of Events May 1

Law Day Week

May 12-14 National High School Mock Trial Competition

Johnson County First Amendment Foundation Continues Its Mission To Promote Better Understanding of Constitution for Kansas Students The presentation of a $5,000 check to the winning team of the Kansas “We the People” state championship in February seemed a natural thing to do for J. Eugene “Gene” Balloun, a partner in the Kansas City firm of Shook, Hardy, & Bacon (SHB) and co-chair of the Johnson County First Amendment Foundation. The winning high school team from Johnson County was, after all, being rewarded for their hard work in learning and presenting their understanding of the U.S. Constitution: the very reason why the Foundation was started. Team members from Blue Valley Northwest High School in Overland Park used the stipend to help defray expenses when the school represents Kansas at the national “We the People” finals April 22-25 in Washington DC. J. Eugene Balloun Balloun, a longtime attorney with SHB, and Hon. David Waxse, now a federal magistrate judge, teamed up in 1999 to organize the First Amendment Foundation, with the mission “to promote a better understanding among Kansas students, particularly in Johnson County, of First Amendment and other Constitutional rights that ensure a free society’s freedom to Hon. David J. Waxse write, freedom to publish and freedom to read.”

The banned book and lawsuit that inspired the Foundation

The Johnson County First Amendment Foundation’s website describes the origin of the Foundation as growing out of a successful lawsuit challenging an attempt to remove an award-winning book from the shelves of a Johnson County high school. The book, Annie On My Mind, by Nancy Garden, tells the fictional story of a romantic relationship between two high school girls. Between 1988 and 1993, at least a half-dozen attempts were made to ban the book from public and school libraries from Oregon and California in the West, to Maine in the East, and from Michigan in the North to Texas in the South. Beginning in 1993, the book received a tumultuous welcome in Kansas. As one observer has written: (Continues on page 2)

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“Several Kansas school districts . . . experienced challenges [to Annie] in 1993 after the schools received a donation of library copies of the novel from a national group that sought to give young adults ‘fair, accurate, and inclusive images of lesbians and gay men.’ The book was first removed, then returned to general circulation in the library in the Shawnee Mission School District. Copies of the book were doused with gasoline and burned by a minister and his followers in the Kansas City School District, but a copy of the novel was retained in the high school library, and the school district donated the novel to the city’s public library.”

Dawn B. Sova, Banned Books: Literature Suppressed on Social Grounds 25-26 (Rev. ed., Facts on File, Inc. 2006).

The next year Annie was banned from five junior high and three senior high school libraries in Olathe, according to the Foundation website. At the Olathe school district’s request, the school librarians had reviewed Annie On My Mind, and determined it was appropriate for high school students. Notwithstanding the librarians’ favorable review, the superintendent of schools (with the approval of the school board) ordered the book’s removal from school libraries. When the district refused to reinstate the book to library shelves, six students and their families sued.

In 1995, SHB represented these students in a lawsuit against the Olathe School District challenging the school district’s removal of Annie from the school library shelves. After a trial, Judge G. Thomas Van Bebber, then the chief judge of the U. S. District Court for the District of Kansas, concluded that the school district defendants: “removed Annie on My Mind because they disagreed with ideas expressed in the book and that this factor was the substantial motivation in their removal decision. Through their removal of the book, defendants intended to deny students in the Olathe School District access to those ideas.

Defendants unconstitutionally sought to ‘prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.’”

Case v. Unified School District No. 233, 908 F. Supp. 864, 875-76 (D. Kan. 1995). The court ruled that the school district violated the students’ First Amendment rights as well as their rights under the Kansas Constitution’s Bill of Rights when it removed Annie On My Mind from the school library. Id. at 876. [To read the court’s decision, go to http://bit.ly/26y3Y5b] The District Court ordered Annie On My Mind returned to school libraries and made available under the usual terms and conditions for library materials in the school district. Id. at 877.

The court also ordered the school district to pay the students’ attorneys’ fees. Case v. Unified School District No. 233, Civ. A. No. 94-2100-GTV, 1996 WL 568841 (D. Kan. Sept. 6, 1996), aff’d in part, rev’d in part, 157 F.3d 1243 (10th Cir. 1998).

On Dec. 22, 1999, Shook, Hardy & Bacon made a charitable contribution of $200,000 to establish the Johnson County First Amendment Foundation. This amount includes the fees which were paid by the Olathe School District as a result of the firm’s successful representation of the group of students in this First Amendment case. The two principal attorneys for plaintiffs in the Annie case, J. Eugene Balloun and David J. Waxse, were instrumental in establishing and organizing the Foundation.

Foundation Structure

The Foundation is supervised by an advisory committee composed of a teacher, a librarian, an attorney selected by the Johnson County Bar Association, and a member selected by the American Civil Liberties Union of Kansas and Western Missouri. The advisory committee makes recommendations for the use of income to further the Foundation’s mission of promoting Kansas high school students’ understanding and appreciation of the Constitution and constitutional values and principles.

Additional information about the foundation and a list of Advisory Committee members can be found at www.jcfaf.org. n

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APRIL/MAY 2016 | LAW WISE 3

Johnson County First Amendment Center Engaged In Numerous Civic Education Outreach Programs

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ssisting student civics teams with travel to national comThe discussion cenpetitions is but the tip of the iceberg for the Johnson tered on Tribe’s latest County First Amendment Center’s civic education en- book, Uncertain Jusdeavors over its 17-year history. Created with a $200,000 con- tice: The Roberts Court tribution by the Kansas City-based Shook, Hardy, & Bacon law and the Constitution, firm, the Foundation has continuously furthered its mission of which, in the words of fostering education about the First Amendment and the U.S. one reviewer, is “filled Constitution. with original insights The crowning achievement for and compelling human the Foundation was in 2013 when stories” that illuminate former U.S. Supreme Court Justice “the most colorful Sandra Day O’Connor arranged story of all – how the her busy schedule to travel to Supreme Court and Johnson County Community Colthe Constitution frame lege (JCCC) to speak with more the way we live.” As a than 1,000 students assembled in bonus, attendees were Yardley Hall on campus. Her visit treated to a free copy followed several years of planning of the hard-cover book. by the Foundation and its repreStudy guides for stuFormer Justice sentatives, which included codents have been preSandra Day O’Connor founders Gene Balloun and Hon. pared for the FoundaDave Waxse, and members of the Foundation’s advisory com- tion’s speaker series, “Gideon’s Trumpet” Book Cover mittee as well as other team members. and are available at the O’Connor has made promoting civic education the hallmark Foundation website, of her retirement; She initiated a website called iCivics, which http://jcfaf.org/ n features interactive games that both students and teachers can use to engage in civic education, while having a bit of fun, too.

Among those in the audience during Justice O’Connor’s appearance were Nancy Garden, author of Annie on My Mind: the book that spurred creation of the Foundation.

As successful as Justice O’Connor’s appearance at JCCC was, it was just one of many civic Nancy Garden education projects that have been presented by the Foundation over the years. Among them was a speaking engagement by the late-Anthony Lewis, author of Gideon’s Trumpet—an acclaimed account of Clarence Gideon, whose conviction of breaking into a pool hall was reversed after he was tried and convicted without a lawyer. (The case is now famously cited in law as Gideon v. Wainwright.)

The Foundation, however, was far from done after presentations by Justice O’Connor and Anthony Lewis.

In October 2014, the Foundation hosted some 800 students, teachers, judges, and other interested guests from 10 counties in Kansas and Missouri to study the cases on the Supreme Court term with America’s foremost constitutional scholar, Harvard Law School Professor Laurence Harvard Law School Professor Laurence H. Tribe engages in a H. Tribe. Tribe engaged the students in a lively discussion lively discussion about the current U.S. Supreme Court and its about the current Supreme Court and its interpretation of interpretation of the Constitution with Teresa Wynn Roseborough, the Constitution with Teresa Wynn Roseborough, general general counsel for The Home Depot. counsel for The Home Depot.

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Backstage before the 2014 constitutional forum. Pictured from left: Tristan L. Duncan, partner and Constitutional Law Practice Co-Chair, Shook, Hardy & Bacon L.L.P.; Professor Laurence H. Tribe, professor of constitutional law, Harvard Law School; Teresa Wynne Roseborough, general counsel of The Home Depot; David J. Waxse, co-founder of the Johnson County First Amendment Foundation and Magistrate Judge (ret.), U.S. District Court for the District of Kansas; Cheryl Brown Henderson, founding president of the Brown Foundation and daughter of Oliver Brown, the Kansas-named plaintiff in the landmark Brown v. Board of Education of Topeka school desegregation litigation; and J. Eugene Balloun, co-founder of the Johnson County First Amendment Foundation and partner, Shook, Hardy & Bacon L.L.P.

First Amendment Foundation co-founder presents a stipend to the winning team at the 2016 Kansas “We the People” state championships. The Blue Valley North High School team placed first in the Mountain Plains Division.

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Students line up to pose their questions during a Q-and-A with the author of Tribe’s book, Uncertain Justice: The Roberts Court and the Constitution.

Sara Hofeditz Christensen, assistant public defender, Missouri State public defender (District 16 - Jackson County), and creator of the Red Curtain Study Guide, talks with Scott DuPree, of counsel, Shook, Hardy & Bacon L.L.P., and advisory committee chair, Johnson County First Amendment Foundation

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“You Be the Judge” Session on U.S. Supreme Court – A favorite in Kansas Schools

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ince the Fall of 1996, about 100 lawyers and judges have presented over 500 programs to over 65,000 Kansas students and adults on the U. S. Supreme Court and cases to help Kansans better understand our government and our court system. The “You Be The Judge” program has received wide acceptance, and is a regular part of the educational programs of many schools. This year will mark the 20th time it has been presented to American Legion Boys State and American Legion Girls State. The program has received local, state and national recognition. Those who present the program have a hard time deciding who has the most fun: the presenters or the audiences.

Over twenty years ago, the Hon. Robert L. Gernon, the Hon. Mary Kay Royse and I started the “You Be the Judge” interactive program. It includes audience participation to help present two cases. Scripts and suggestions organized by grade level are available to those who want to present, although some presenters prefer to create their own programs. For the last few years KBA members have been concentrating on making presentations on or around Constitution Day. Constitution Day is September 17th, during Celebrate Freedom Week.

Students particularly enjoy the amusing aspects of the program. For example, “ Spike the Wonder Dog,” a large, stuffed drug dog, who helps present Edmunds v. Indianapolis, is often recognized by seniors who “met” Spike at Boys and Girls

State. And, three specimen jars usually bring forth a number of giggles as part of the presentation on urine tests for prospective public officials who want to run for office in Georgia. Judicial robes are donned by the audience members playing judges and the U.S. Constitution is quoted where appropriate from pocket-sized copies.

The presenters will usually have a brief biography read about them and will take a few minutes to describe the separation of powers and our system of governmental checks and balances.

There is sometimes a little time for questions at the end.

The most difficult part of the program is getting it scheduled, although once the program has been done in a school or adult group it is much easier to schedule additional presentations. Programs have been given to students from Kindergarten through grade 12, but older students are the usual audience.

If you would like to schedule a program, contact Judge Pierron at (785) 296-5408, or pierronj@kscourts.org. n

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Hon. G. Joseph Pierrron, Jr. (785) 296-5408 pierronj@kscourts.org

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Yo u b e t h e J u d g e A P r e s e n t e r ’s Pe r s p e c t i ve

Originally published in the October 2015 Topeka Bar Association Briefings

By Alison J. St. Clair

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t’s that time of year again! Summer is winding down, there’s a bit of chill in the morning air, and the Hon. G. Joseph Pierron, Jr. is calling on Topeka attorneys and judges to make Constitution Day presentations at local schools. For those of you who don’t know, Constitution Day is celebrated Sept. 17 each year to commemorate the day the Constitution was signed. This past month, several of us answered Judge Pierron’s call, brushed up on our knowledge of the separation of powers, and set out to educate students about the formation of our nation’s government that occurred over 200 years ago.

Topics ranged from British rule to the three branches of government and the separation of powers, and a wide variety of age groups got to hear the presentations. Barb Rankin, Chief Counsel for the Kansas Department of Transportation, presented to students in grades three through eight, as well as Topeka West High School students. Regardless of the age, there was a consensus from the presenters that the students were all very engaged and genuinely interested in learning about the Constitution. According to Nicole Revenaugh, associate attorney at Palmer, Leatherman, White, Girard & Van Dyk, the fourth graders to whom she presented “were very knowledgeable about the Constitution,” and Luanne Leeds of Leeds Law LLC was impressed by the questions the kids asked.

In fact, one of the most interesting aspects of presenting to a group of elementary school students is the often unpredictable comments and questions you receive from the kids. One inquisitive fifth grader asked Betsey Lasister, research attorney to the Honorable G. Joseph Pierron, Jr., whether she has ever been in the underground tunnels that lead to the Capitol building.

A sixth grader asked if there was an amendment giving

us the right to fight the government; when asked if he meant the right to protest against the government, he said, “No, I meant really fight.” And a fourth grader said that she heard Abraham Lincoln got shot and died—was that really true? She had a follow-up question: Did his wife die?

My favorite part about presenting was learning so much during the research I did prior to the presentation. Did you know that George Washington established Thanksgiving Day in November 1789 in part so we could give thanks for the Constitution? I didn’t either until a few weeks ago!

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Tips on presenting: 1. Do not trust the audio visual equipment – Give yourself ample time to set it up beforehand or bring your own so you know it works.

2. Get the kids engaged with fun costumes and skits.

3. Be sure to get plenty of rest the night before because the kids are very energetic!

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Te r r i f i c Te c h n o l o g y The Johnson County First Amendment Foundation has an excellent website for anyone interested its mission “to promote a better understanding among Kansas students, particularly in Johnson County, of First Amendment and other Constitutional rights that ensure a free society’s freedom to write, freedom to publish and freedom to read.” http://jcfaf.org/ Former U.S. Supreme Court Justice Sandra Day O’Connor has made it her mission in retirement to promote civic education in America. To do so, she has created an excellent interactive website with free lesson plans and games. www.icivics.org

for

Te a c h e r s

The books of Anthony F. Lewis, including Gideon’s Trumpet, can be found at his website: http://www.anthonylewisbooks.com/.

This list of banned books might surprise you. This site features grade-specific slide shows, and teaching guides about banned books and First Amendment topics. Find out which popular books were challenged by parents, administrators, teachers, religious groups, or governments, for reasons such as sexually explicit content, or offensive language. https://www.teachervision.com/literature/reading/72758.html

2016 Mock Trial Tournament Update Going to Nationals

Congratulations to this year’s team traveling to the National High School Mock Trial Competition in Boise, Idaho, May 12-14. They are from Blue Valley Northwest High School and coached by Art Delgado.

(l-r) Vandita Garimella, Anna Cowden, Shaili Patel, Caitlyn Hager, Ayesha Vishnani, Susie Song and Arvind Shankar

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Lesson Plan

D o S t u d e n t s Have t h e R i g h t to Re a d?

Source: http://bit.ly/1SPIs4E

Grades: 7–12

Introduction

Students have the right to learn. Teachers have the right to teach. Parents have the right to know what their children are learning and the freedom to protest if they consider it unsuitable or detrimental. Americans have the right to control their local schools by appointing or electing school board members who assume legal responsibility for budgetary and curriculum matters.

It’s almost inevitable that the interests of all these groups will often collide. One result can be challenges to books on public school library shelves.

In this interdisciplinary lesson, students use several sources to learn how the First Amendment protects their access to books in the school library. Students examine a U.S. Supreme Court decision and their own school district’s policy about the removal of controversial books from school libraries. Students will create a mock call-in radio program and write a position paper or editorial.

This lesson requires co-teaching with the school librarian and/or a school administrator. Review the lesson with these individuals ahead of time so that they will understand their roles in helping students understand your district’s school-library policies. The librarian can also assist you in putting together a display of banned and/or challenged books to use with the lesson.

Key concepts

• The First Amendment has a role in affording the public access to discussion, debate and dissemination of information and ideas.

• The First Amendment right to distribute literature also protects the right to receive it.

• The First Amendment guarantees of freedom of speech and freedom of the press extend to public school libraries.

• School boards cannot restrict the availability of books in public school libraries simply because school-board members disagree with certain ideas or content.

• School officials may remove books from the public school library based on educational suitability, but they may not “prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion.”

First Principles

• The First Amendment affirms the freedom of the individual.

• The First Amendment tells the government to keep its “hands off” our religion, our ideas, our ability to express ourselves.

• Other people have rights, too.

First moments

Ask students what Of Mice and Men, Harry Potter and the Sorcerer’s Stone and the Bible have in common. The answer?

They have all been challenged or banned in public schools.

Display a selection of banned or challenged books in a prominent place in your classroom. Include in this selection books meant for children, and any that might be taught in your school’s English program. The books may also come from your school’s library. Ask students to speculate on what these books have in common. If no one mentions the correct answer, explain that these also have been challenged or banned, or that students’ access to them in school has been prohibited. Your school librarian may have American Library Association material on challenged or banned books.

How many of these books have students read? If students have read any of the books on display, did they find them to be entertaining, informative, beneficial or objectionable? Can they suggest reasons why someone would object to elementary, middle school or high school students reading these books?

Procedure

1. Remind students that the First Amendment protects free speech and a free press. Discuss the First Principles that apply to this lesson, explaining that these are some of the ways in which the First Amendment has served U.S. citizens.

For example: • When people are able to choose freely among many different competing ideas, they make better choices.

• Exposure to competing ideas provides us with variety, enriching our society.

• Individuals whose strongly held, unpopular opinions are given an outlet may be less apt to resort to violence than if their ideas are suppressed.

• Because many decisions in our society are made by the majority, protection of minority rights ensures that the ideas of smaller, less popular groups are not suppressed by the majority. In time, the majority may come to agree with these minority groups.

• Citizens’ ability to criticize the government helps prevent the government from misusing its power.

To check for student understanding, ask students to give a journal response to this question: “Which benefits of the First Amendment does reading most clearly provide us?”

2. Next, ask students to define censorship, the act of examining and expurgating (removing) something objectionable.

What effect does book censorship have on an individual’s ability to recognize the benefits of the First Amendment? Explain to students that the pressures to suppress freedom of expression are widespread and powerful in society. This is why it is so

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APRIL/MAY 2016 | LAW WISE 9 important to fully understand the benefits of free expression of ideas to society. Ask students to review the responses in their journal entries (Procedure 1) as they consider the effects book censorship might have on the benefits of free expression.

3. In 1982, the U.S. Supreme Court examined the issue of book censorship in school libraries. Distribute Case Study: Board of Education, Island Trees Union Free School District v.

Pico (1982). Review the facts of the case with students. Individually, students should identify the best arguments for Opinion A and Opinion B by listing the arguments in two columns.

During class discussion, students should be prepared to give reasons for their selection of arguments.

Explain to students that Opinion A was the majority opinion in a 5-4 decision in the case Board of Education, Island Trees Union Free School District v. Pico (1982). The court held that “as centers for voluntary inquiry and the dissemination of information and ideas, school libraries enjoy a special affinity with the rights of free speech and press.

Therefore, the Board could not restrict the availability of books in its libraries simply because its members disagreed with their idea content.” Returning once again to their First Amendment benefits, can students find references to the benefits of First Amendment free expression in the justices’ writings excerpted here?

4. Explain to students that as a result of the Board of Education, Island Trees Union Free School District v. Pico Supreme Court case, public school districts around the country developed policies concerning book challenges in elementary, middle and high school libraries. Students have a First Amendment right to receive the ideas discussed in books, but this right is interpreted in light of the special characteristics of the school environment. The court held that school officials may not remove books from a school library simply because they do not like the messages conveyed. School officials may remove books from the school library based on educational suitability as long as the motivation is for reasons other than content, such as preventing student exposure to obscene or vulgar messages.

Distribute copies of your school’s policy on removing books from the school’s library. Invite the school librarian and/or school administrator to explain the policy to students.

Ask some specific questions: • Has the policy ever been used in your school?

• Who makes library acquisition decisions?

• Do students have full First Amendment rights at school?

• How might the age of students limit their First Amendment rights?

Examine the school policy: • Does the policy reflect the viewpoints of various groups in your community?

• To what extent is it content-neutral?

• Does it include a fair appeals process?

• Do students think the policy is consistent with the First Amendment?

5. Divide students into four groups. They will create a call-in radio show. The topic for the show: “Banning Books - Should school administrators have the authority to remove books from public school libraries?” To assist the teacher, “Organize a Callin Radio Show” is provided.

6. Have students write a position paper or editorial on the topic of whether school administrators should have the authority to remove books from public school libraries. n

The Kansas Bar Foundation, with Interest on Lawyers’ Trust Accounts (IOLTA) funding, provides support for this publication. Law Wise provides general information about law-related matters of interest to teachers, students, and the public in Kansas, but does not provide any legal advice, so readers should consult their own lawyers for legal advice. For further information about any projects or articles, contact Ron Keefover at ronkeefover@gmail.com; or Anne Woods, public services director, (785) 234-5696. Law Wise is published by the Kansas Bar Association, 1200 SW Harrison St., Topeka, KS 66612-1806, during the school year.

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