ERIC ED379206: Update on Law-Related Education, 1977-1992.

2838 Pages·1992·107 MB·English

by  ERIC

DOCUMENT RESUME
ED 379 206
SO 024 783
TITLE
Update on Law-Related Education, 1977-1992.
INSTITUTION
American Bar Association, Chicago, Ill. Special
Committee on Youth Education for Citizenship.
REPORT NO
ISSN-0147-8648
PUB DATE
92
NOTE
2,845p.; Published three times
a year.
AVAILABLE FROM
American Bar Association, Special Committee
on Youth
Education for Citizenship, 541 North Fairbanks
Court,
Chicago, IL 60611-3314.
PUB TYPE
Guides - Classroom Use - Teaching Guides (For
Teacher) (052)
Guides - Non-Classroom Use (055)
Collected Works
Serials (022)
JOURNAL CIT
Update on Law-Related Education; v1-16 1977-1992
EDRS PRICE
MF26/PC114 Plus Postage.
DESCRIPTORS
Athletics; *Citizenship Education; Civil Rights;
Constitutional History; Constitutional Law;
Correctional Institutions; Democracy; Discipline;
Elementary Secondary Education; Instructional
Materials; International Law; *Law Related
Education;
Social Discrimination; Social Studies; Teaching
Methods
ABSTRACT
This document consists of the first 16
volumes (47
issues) of a serial devoted to
law-related education (LRE) that
offers background information on
a wide range of legal issues as well
as teaching strategies for L1C,. Issues of the magazine focus
on the
law as it affects schools and
Ioung people, with articles on school
discipline, juvenile justice, the legal rights
of students, youth at
risk, and drugs in'the schools. Many themes
in constitutional law
with special emphasis
on the First and Fourth Amendments, the Civil
Rights Amendments, the separation of
powers, the constitutional
framework for declaring war, and the Rehnquist
Court are featured.
Some issues take a global perspective with articlei
on law in world
cultures and international law. Special
areas of the law including
intellectual property, family law, privacy
rights, and corrections
are outlined in other issues. The material
covers themes as they
relate to the law such as sports, religion,
discrimination, justice,
ethics, and democracy. Each issue
proposes teaching methods that
involve class discussions, collaborative
learning, mock trials,
map
exercises, and resource people. Many of
the lesson plans include
student handouts such as background sheets,
cartoons, puzzles, and
worksheets. (JD)
***********************************************************************
Reproductions supplied by EDRS
are the best that can be made
from the original document.
***********************************************************************
1977-1992
Update on Law-Related Education,
U.S. DEPARTMENT OF EDUCATION
Office of Educational Research and improvement
E UCATIONAL RESOURCES INFORMATION
CENTER (ERIC)
This document has been reproduced as
received from the person or organization
originating d
O Minor changes have been made to improve
reproduction Quality
Points of view or opinions stated in this doter
ment do not necessarily represent official
OERI position or policy
"PERMISSION TO REPRODUCE THIS
ANTED BY
MATERIAL HAS BEEN
fmosy-
iLP,cv
I.)
TO THE EDUCATIONAL RESOURCES
INFORMATION CENTER (ERIC)."
2
BEST COPY AVAILABLE
.:4-.-:;,..if4r4t)*
..
.
..n
1
i).
l
'
1
Z
r'lli
44 kr , : '';
4 isk
"Ir..,"'Ll 1 1
,:
,V
11';'
,
+
1,.
',.
t
ie...,,,,,v,
) t it ' .111 ..1:
..
:
I.
k.I)
',
141
7
,;,:i
,,-t.,11'....itiii.t,:it 1.1:i;
Axi
,
TI:i.?
,I,.. ,t f
1'
.
4
i i
4:
t
-
.t,
} "..
CL.
e,'Ir'''''t
-
P
b,t,..,#1,ii.t..'''1.-,4..:40.1:
ifi
'
i
I. ;11
-0
0
,,
1,
, ,
,
.
.
I
.
'4`1-- r " A
i.
,
1
eel..."
0
,_D
:i
a
I
:
Y".'-''..
NI. :...
Ili
fr.:
:
11J '''.:
--4e."1"1"11111'
a
'.1
L.)
.
UJI
.1
i
L..
4.i
.
i
:dtitl:
.
n'e
.;
u.,
/.,
.1
0
eF
:
4
;
lk'
*?/*,
0
hr. ( tIlitit
,
A In4
f
7,,-4.!..;14'kel:*1;9'-::;.14 .1;:r7'ill;i1('
.'
.:.
- --I
t3;1'
OPENING STATEMENT
Law-related education, like the law itself, is.dynamie and
activities, program ideas, coming events, and other news and
constantly evolving. Since the early '70s alone, there has
views in the field. Special features such as innovative instruc-
been dramatic growth in law-related programs and materials,
tional approaches and guest commentaries on critical legal
reflecting a rich variety of topics and approaches. These
and educational issues will also be included. We will, of
activities are continually being refined while new and ex-
course, also continue to publish our Working Notes series on
panded efforts are being instituted.
a regular basis.
To a significant degree, you the reader will be the
To keep you informed of these developments, YEFC has
published directories, curriculum catalogues, guides to
contributors and editors of Update. We urge you to send us
program development, listings of summer teacher education
materials and information for subsequent issues, to share
institutes, and other materials. Oftentimes, however,
ideas for new sections and discussion topics, and to offer
developments in the field outran our ability to publish
your candid reactions to this and subsequent issues. To assist
revised and up-to-date editions of these publications.
you in this regard, a questionnaire is included in this issue.
In addition, many of you have expressed your desire for a
The first several issues of Update will be distributed on a
ready source of information about the latest developments in
complimentary basis and serve as pilots for more compre-
the law, particularly court decisions in areas commonly
hensive issues which will be available by subscription. We
covered in your courses.
hope you enjoy Update and find it a useful adjunct to your
Update is designed to fill these needs by providing
law-related education program.
three times each school yearrecent information about legal
cases, curriculum materials, funding opportunities, project
Norman Gross
American Bar Association
Special Committee on Youth Education for Citizenship
The Special Committee
The Advisory Commission
The Staff
William H. Bell, Chairman
Staff Director
R. Freeman Butts
David W. Enoch
Norman Gross
Edwin Fenton
Scott M. Matheson
Mary Conway Kohler
Assistant Staff Directors
Richard C. Maxwell
Howard Mehlinger
Charles J. White
C. Thomas Ross
Laura Nader
Cynthia A. Kelly
Donald F. Sandberg
Fred M. Newmann
Leigh Stelzer
Milton I. Shadur
Charles N. Quigley
Administrative Assistant
Isidore Starr
Kevin A. Ryan
Jane M. Koprowski
Margaret Bush Wilson
David Schimmel
Secretary
James P. Shaver
Judith V. Torney
Eyvonne Gaither
Update Editors
Norman Gross, Charles J. White
©1977, American Bar Association
4
ti
Volume 1, Number 1 Spring 1977
20
12
The $.$ Game
Update Looks Back
Federal Funds Available
A Plea for Equality
7
Supreme Court Report
The Court Grapples
with Equal Protection
25
Project News
5
New Statewide Projects
Court Briefs
From Pregnancy Benefits to
31
Undercover Agents
Up and Coming
Summer Programs for Teachers
14
8
Family Lawyer
Project News
Cases on.. .Animals
Credits
Being Ripped Off? Call a Kid
PHOTOS: cover and page 2,
and Accidents
Ted Lacey; page 8, Alfred
Gescheidt; page 12 Jacob Rlis
/The Bettman Archive; par 20
16
Dennis Brack/Black Star.
CARTOONS: page 6, Nick
Project News
Hobart; page 10, Levin (re-
Oregon Project Thrives
printed by permission of New
on Hard Money
Yorker Magazine); page 15,
Herb Brammeier, Jr.; page 19,
Joseph Farris; page 28, James
Estes; page 32, The Wizard of
17
Id by permission of Johnny
Hart and Field Enterprises, inc.
Curriculum Update
11
Focus on Audio-Visual
Materials
Newsclips
5
4
SUPREME COURT
REPORT
E
UR
L
APPL
WITH
EQUAL
PROTECTION
Norman Gross, Cynthia A.
Kell
Charles J. White
What does a would-be beer drinker
in Oklahoma have in
In defending itself, the
state of Oklahoma argued that the
common with prospective black residents
of an Illinois
distinction between the
sexes was reasonable and
suburb, a group of Orthodox
was
Jews in Brooklyn, and
a dis-
rationally related to the
purpose of the lawreducing traffic
appointed white applicant to
a California medical school?
accidents caused by drunken
drivers. To support this claim,
Al! of them have felt that they
have been treated unfairly
Oklahoma introo iced
statistics
showing that
drunken
under the law and have filed suits
charging that they've been
driving accidents could be
effectively reduced by restricting
deprived of their constitutional
right to equal protection. In
the sale of 3.20/o beer to
a single group of drivers: males
addition, each of their cases has
aged
reached the U.S. Supreme
18-20. The evidence included
statistics demonstrating that
Court, providing us with
some notion of the Court's inter-
many more males than females
that age were arrested for
pretation of this constitutional
guarantee and its impact on
"driving under the influence"
our daily lives.
and "drunkeness," that
more
males than females that
age were injured in traffic accidents,
and that more males than
females that age were inclined
to
drink beer.
The Craig Case:
Though the rights of beer
drinkers may seem like
a trivial
Discrimination on the Basis Of Sex
matter, the case
raises the very fundamental
question of
The Fourteenth Amendment
whether laws can distinguish
provides that no state shall
between the sexes, and, if
so,
deny to any person "the equal
what standards are there
protection of the laws." This
to help determine when such laws
are
standard is easy to meet when
constitutional and when they
a particular law affects every-
are not.
one equally. What happens, however,
when individuals in
similar situations are treated
differently under the law?
The Traditional Standard
of Reasonableness
In the recent case of Craig
v. Boren (45 U.S.L.W. 4057,
Many would argue that
the Oklahoma law
December 20, 1976), an Oklahoma
was clearly
law prohibited the sale of
unconstitutional under the
Fourteenth Amendment:.
"non-intoxicating" 3.2% beer
to males aged 18-20 years old.
aren't mates and females of
the same ages being treated
Nineteen year old Curtis Ci aig felt
dif-
that he should have the
ferently under the law? The
Supreme Court has long
same rights as females his age,
recog-
so he filed suit asking that the
nized, however, that
law be declared unconstitutional
classification is an inevitable
part of
under the Fourteenth
law-making and that the
Equal Protection Clause
Amendment's Equal Protection
permits
Clause. He contended that
lators to pass laws that
there was not sufficient
reasonably classify people into
reason for the legislature to make
different groups.
such a distinction based
upon sex.
Thus, the state can require
that non-residents
pay higher
2
6
tinction which had in the past resulted in numerous instances
tuition than state residents to attend a state university; or
of discrimination. Relying on previous Court decisions in
they can treat juveniles and adults differently although each
this area, he declared that sex-based classifications must be
committed a similar crime; or they may tax some kinds of
"substantially" related to the legislative goal.
property at one rate, and others at another, and exempt
What is the difference between "rationally related" and
others altogether.
"substantially related"? In general, to be rationally related
The Court's reasoning is that the Constitution has granted
the classification must have a reasonable connection to the
states powers to provide for the health, safety, morals, and
law's purpose (in this case, improving traffic safety). This
general welfare of the people. Since legislators are closer
standard places a substantial burden on the complaining
to these problems than the courts, and presumably speak
party, who must show that the classification is irrational or
be reluctant to
on behalf of the people, courts should
arbitrary; and, as Chief Justice Burger suggests, the Court
declare their actions unconstitutional. For example, it isn't
will under this standard often uphold unwise and imperfect
enough to allege that the state's actions result in inequality. As
laws. On the other hand, to be substantially related there has
the courts have explained, "inequality" is an unavoidable
to be a close, intimate connection between the classification
result of classification. In fact, under the traditional stan-
and what the law seeks to accomplish. This standard shifts
dard of reasonableness, as long as the classification is rea-
the burden of proof to the law-making body, which must
sonable and "rationally related to the object of the legis-
show that the classification is not only rational but also
lation," it will be upheld. This traditional test gives the states
a necessary element in achieving an important legislative
wide discretion in enacting laws which treat some groups
objective.
differently from others.
Applying this tougher standard to the Oklahoma law, the
In the Craig case, two members of the CourtChief
majority concluded that these statistics did not justify treat-
Justice Burger and Justice Rehnquistargued that the Okla-
ing males and females differently in the purchase of 3.2%
homa law should be upheld because a met the traditional
beer. The Court noted, for example, that while many more
equal protection test of reasonableness. In Chief Justice
males than females aged 18-20 were arrested for alcohol-
Burger's words, "the means employed by the Oklahoma
related driving offenses, only a very small percentage of
legislature to achieve the objectives sought may not be agree-
either group.18% of females and 2.0% of maleswas
. the means are not
ir-
able to some judges, but since .
.
involved in such offenses, a difference too small to justify a
rational, I see no basis for striking down the statute as vio-
distinction based on sex.
lative of the Constitution simply because we find it unwise,
Also, the statistics failed to show whether those arrested
or possibly even a bit foolish."
had been drinking 3.2% beer or other alcoholic beverages;
for example, they might have been drinking hard liquor.
Sex-Based Classifications:
Finally, while Oklahoma law prohibited 18-20 year-old
The "Substantially Related" Standard
males from buying beer, it did not prohibit them from drink-
A me iority of the Court did not agree with this reasoning.
ing it, even when it had been purchased by their 18-20
It wasn't that they found the law unreasonable. Rather, they
year-old girlfriends. The unpersuasive statistics and incon-
applied another test which required that the law be more
sistencies in the law's application, the majority said, made
than reasonable if it were to be constitutional.
the r4lationship between gender and traffic safety "far too
Writing for the majority, Justice Brennan pointed out that
tenuous" to satisfy the "substantially related" test. As a
this case involved classification on the basis of sex, a dis-
4.7.45 U.S.L.W. 4057?!?
(2) the volume and page it can be found
appeal is being brought listed second:
Are you unsure about the meaning of
in United States Reports:
45 U.S.L.W. 4057? You are not alone.
Craig v. Boren
Legal citations are unfamiliar to most
351 (page)
416 (volume)
U.S.
Americans. However, they're easy to
(2) the volume and page it can be found
(3) the year the case was decided: 1974.
understand and will help you find cases
in United States Law Week:
cited in this issue and in other publica-
Citations for decisions of other
45 (volume) U.S.L.W. 4057 (page)
tions.
federal as well as state courts are simi-
(3) the date the case was decided:
First, a look at Supreme Court cita-
structured, the only difference
larly
tions. The most recent Supreme Court
December 20, 1976.
being the reporter system in which the
decisions appear weekly in a loose leaf
case appears.
Supreme Court cases which are not so
volume called United States Law Week.
Of course, a law school library is
recent appear in a publication called the
A citation in this publication looks like
often the best place to research a case,
United States Reports. A citation for the
the following:
but most bar associations, county or city
case of Kahn v. Shevin 416 U.S. 351
governments, and law firms have at least
us the
Craig v. Boren, 45 U.S.L.W. 4057,
(1974), for example,
tells
the Supreme Court reporters. Establish-
December 20, 1976.
following:
ing contacts with law librarians, prac-
Broken down, the citation gives the
(1) the name of the case, with the party
ticing attorneys, and others who have
following information:
appealing to the Supreme Court listed
ready access to such resources can thus
first, and the party against whom the
be especially valuable for you and your
(1) the name of the case, with the party
appeal is being brought listed second:
students.
appealing to the Supreme Court listed
first, and the party against whom the
Kahn v. Shevin
result, the Court found the Oklahoma law to be unconsti-
the right of 18-20 year-old males to drink "non-intoxi-
tutional under the Equal Protection Clause.
cating" beer, he raised at the same time troubling issues re-
garding fundamental guarantees of our constitutional
"Suspect" Classifications:
system.
The "Compelling Interest" Standard
The Arlington Heights Case:
Interestingly enough, the Court could have applied an
Legislative intent vs. Legislative Effect
even more stringent standard in the
case. In prior deci-
Craig
sions, the Court has ruled that laws which single out certain
Craig v. Boren is a case where a law on its face differen-
special groups are "inherently suspect" if they are based on
tiated on the basis of sex. However, what about laws which
don't mention sexor race, national origin, or alien status
characteristics determined "solely by the accident of birth"
but whose effect may well be discriminatory? The Court
or if they discriminate against groups of people who have
been victims of "a history of purposeful unequal treat-
faced this issuewhether it must examine the intent of legis-
ment," or who have been "relegated to a position of
lators or the effect of their lawsin the case of Village of
Arlington Heights v. Metropolitan Housing Development
political powerlessness." The Court has stated., for example,
Corporation (45 U.S.L.W. 4073, January 11, 1977).
that laws involving classifications based upon race, national
The case arose when the Metropolitan Housing Develop-
origin, or alien status are all "suspect" anc: must be sub-
ment Corporation (MHDC), a non-profit land developer,
jected to a "most rigid scrutiny" if they are tv be upheld. In
instituted plans to build 190 low and moderate income
cases involving laws with these suspect classifications, the
Court requires more than even a "substantial" relationship
racially integrated townhouse units on a 15-acre parcel of
between the law and its purpose; instead, the state must show
property in Arlington Heights, a Chicago suburb located 26
that it had a "compelling interest" in drafting the law the
miles northwest of the downtown area. Most of the land in
way it did.
the Village is occupied by single-family homes, and the racial
Considering these guidelines, one might well question why
composition of the community is almost entirely white (the
sex is not one of the "suspect" classifications. It is, after all,
1970 census found only 27 blacks in the 64,000 member corn-
mur ity). The development could not be built under the
Village's existing zoning laws, however, so MHDC filed a
petition for rezoning which would allow multiple family
dwellings to be built.
The Village held three public meetings to consider whether
Are the courts promoting a form of
or not the rezoning should be permitted. Each meeting drew
equality never contemplated by the
large and vocal crowds, mostly composed of opponents of
Fourteenth Amendment?
the rezoning plan. The opponents stressed two major argu-
that the area had always been zoned for
I)
ments:
single family residences and current residents had pur-
chased their homes in reliance on that fact, and 2) that this
project was not consistent with a Village policy adopted nine
years before which called for new multiple-family units to be
built in areas where they would serve as a buffer between
an "accident of birth" and many would argue that women
single-family homes and industrial complexes. Some of
have been subjected to "a history of purposeful unequal
the opponents also argued directly against building racially
treatment."
integrated housing in the community.
Craig v. Boren
presented the Court with the opportunity
After the third meeting, the Village Plan Commission
to rule that sex should join the other personal traits listed
passed a motion stating that "While the need for low and
above as a "suspect" classification but, as we have seen, the
moderate income housing may exist in Arlington Heights
Court rejected this option, though it did employ a tougher
and its environs, the Plan Commission would be derelict in
standard than the traditional test of reasonableness.
recommending it at the proposed location."
One prospective resident, a black man named Ransom,
Equality At All Costs?
was very disappointed in this decision. A worker at the
Many questions remain unanswered by the
case.
Craig
Arlington Heights Honeywell factory, Ransom had to
com-
Isn't it possible that one outcome of decisions like this might
mute daily from 20 miles away in Evanston where he lived in
be that legislators will try to avoid distinguishing between
a five-room house with his mother and son. Ransom had
groups whenever possible and pass very restrictive laws which
looked forward to the housing development since he
will meet ary equal protection objections? What could
hoped to move there and be closer to his job. With MHDC
be done, for example, if Oklahoma passed a law pro-
and two other prospective black residents, he sued the
hibiting all persons under 21 from purchasing 3.20/0 beer?
Village, claiming that the denial of the rezoning request was
Would not the law then treat everyone equally?
a violation of the Fourteenth Amendment's Equal Protec-
Many warn that court decisions such as
promote a
Craig
tion Clause.
form of equality never contemplated when the Fourteenth
The District Court ruled for the Village. After examining
Amendment was enacted. Others are concerned that the
the actions of the Village, the court found that it did not
courts in cases such as Craig are in effect substituting their
intend to discriminate against any race, but rather acted to
judgment for the judgment of law-makers, thus upsetting the
"protect property values and the integrity of the Village's
traditional separation of powers between the legislative and
zoning plan."
judicial branches. Thus, while Curtis Craig may have won
(continued on page 26)
COURT BRIEFS
BENEFITS
FROM PREGNANCY
TO UNDERCOVER AGENTS
who had resided in the state for less than
tices to see whether or not they treated
Equal Protection and
a year until state residents were un-
the sexes differently. He found that the
Pregnancy Benefits
available for employment. Two painting
Court had disregarded General Elec-
General Electric's disability plan pro-
firms performing work for the New
tric's history of using practices which
vided sickness and accident benefits to
York City Board of Education were
served to undercut the opportunities of
all its employees, but did not cover dis-
threatened with loss of their contracts
women who became pregnant while
abilities arising from pregnancy. In an
employed, practices which led the Dis-
when they employed legally admitted
action filed on behalf of all female
trict Court to conclude that General
aliens. They then filed suit in federal
employees who had been denied preg-
Electric's "discriminatory attitude"
court, claiming that this law violated
nancy benefits, Martha Gilbert brought
their rights under the Equal Protection
toward women was "a motivating factor
District Court
asking that
the
suit
and Due Process Clauses of the Four-
in its policy." He also pointed out that
declare the plan in violation of Title VII
teenth Amendment. In a 2-1 decision,
the plan covered risks relating to the
of the Civil Rights Act of 1964, which
male reproductive system, such as
prohibits an employer from discrim-
vasectomies and circumcisions, as well
inating on the basis of sex in compen-
such as
as "voluntary" disabilities,
sating an employee. Both the District
sports injuries and cosmetic surgery.
Court and Court of Appeals found the
history of
Given General Electric's
plan violated Title VII.
employment practices and the fact that
General Electric Company v. Gil-
In
When unemployment is
pregnancy was the only disability, sex-
U.S.L.W. 4031, December 7,
bert (45
high, can the state give
specific or otherwise, which was not
1976), the Supreme Court by a 6-3 vote
covered by the plan, he concluded that
special hiring preference
held that disability plans which exclude
the evidence supported a finding of
to its own citizens?
pregnancy do not violate federal sex-
intent to discriminate on the basis of sex
discrimination law. In an opinion
de-
in violation of Title VII.
by Justice Rehnquist, the major-
livered
Justice Stevens also dissented, arguing
ity stated that the General Electric plan
that "by definition" the exclusion of
was "nothing more than an insurance
pregnancy discriminates on the basis of
package, which covers some risks but
sex. He therefore found the policy in
excludes others." The majority found
violation of Title VII without having to
the District Court agreed. The majority
no evidence of specific intent to dis-
examine the questions of whether the
stated that because the law's discrimina-
criminate against women, nor did it
policy had a discriminatory intent or
tion against aliens involved a "suspect"
agree that the plan had a discriminatory
effect.
class, New York was required to prove
effect merely because it was less than all
that the law was necessary to serve a
inclusi. Because there was no risk
Equal Protection:
"compelling interest." The court con-
from which men were protected and
cluded that the stated goal of protecting
Preference in Hiring
women were not, and there was likewise
New York citizens during times of high
Many people believe, especially in
no risk from which women were pro-
unemployment did not meet this test and
tected and men were not, the Court
time of high unemployment, that their
found the law to be unconstitutional.
found that the plan was essentially
state government should give preference
Without hearing oral arguments or
to state residents in hiring workers for
neutral in what it did cover, and thus did
issuing a formal opinion, the Supreme
government-sponsored jobs. A New
not violate Title VII.
Court upheld the District Court decision
York state law sought to do this by re-
Justice Brennan filed a dissenting
Lefkowitz v. C. D. R.
in the case of
opinion in which Justice Marshall
quiring private contractors on govern-
(45 U.S.L.W. 3462,
Enterprises, Ltd.
ment jobs to give preference to citizens
joined. He stated that the Court's analy-
January 10, 1977). Justices White and
who had resided in the state for a year.
sis of the case was "simplistic and mis-
Rehnquist dissented, however, on the
The law stated that contractors per-
leading," and felt that it was impossible
forming work for state and local
ground that the Court should have heard
to fairly examine the discrimination
governments in periods of high unem-
arguments on the case before reaching a
issue without looking at the prior history
ployment could not hire aliens or those
decision.
of General Electric's employment prac-
5
9
Equal Protection and the
Social Security Act
In California
Goldfarb (45
v.
U.S.L.W. 4237, March 2, 1977)
the
Supreme Court ruled that
a provision of
the Social Security Act which
treated
widows and widowers differently
was in
violation of the Fifth Amendment
equal
protection guarantee. Under this
chal-
lenged provision, a widow
received
benefits automatically
upon her hus-
band's death, while
a widower was only
eligible for these benefits if
he could
prove that he was receiving "at least
one-half of his support"
from his
deceased wife.
Writing an opinion in which
three
other justices joined, Justice
Brennan
found that the difference
in treatment
between the sexes was
not based on any
deliberate congressional finding
that
widows were in greater need
of these
benefits. Instead, he determined
from
examining the history of the
passage of
this Act that this sex-based
distinction
was merely a result of "archaic
and
overbroad" generalizations and
"old
notions" which presumed
that all
"Where did you get that chair?"
women are dependent. The opinion
stated that the only conceivable
justi-
sonable; (2) the great administrative
in-
Still serving as
fication for writing the
an undercover agent,
presumption of
convenience involved in
determining
Weatherford was also
female dependency into the
arrested and
law would
dependency status in every
case made it
be to save the Government
jailed. During the period
the time,
before trial,
reasonable for Congress to rely
on the
Weatherford
money, and effort which would
deliberately
repre-
be
presumption that females
were generally
sented himself as another
necessary if it required proof of depen-
defendent in
dependent.
the case and was
dency by both sexes. The opinion
present at two meetings
con-
cluded that this administrative
between Bursey and his
lawyer. With
con-
Strom's approval,
sideration was not sufficient
Weatherford then
to make the
Right to Counsel and
Lawyer-
testified against Bursey
law constitutional under
the Court's
at the trial where
Client Confidentiality
Bursey was convicted. Bursey
previously stated rule requiring
then sued
that laws
Can an undercover agent be
present at
both Weatherford and
treating the sexes differently
Strom, claiming
"serve
discussions between a defendant
and his
a violation of his constitutional
important governmental objectives
rights.
and
attorney without violating the
Sixth
In an opinion written
be substantially related
to the
by Justice
Amendment's guarantee of the
effective
White, a majority of the
achievement of those objectives."
In a
Supreme Court
assistance of counsel? In
the case of
concurring opinion, Justice
disagreed. The Court noted
that Bursey
Stevens
Weatherford and Strom
v. Bursey (45
and his lawyer had asked
stated that "more than accident
is neces-
Weatherford
U.S.L.W. 4154, February
22, 1977), the
to join him in their discussions
sary to justify the disparate
of trial
treatment of
Court found by a vote of
7-2 that the in-
tactics, and that Bursey's
persons who have as strong
a claim to
defense in the
former's presence at these
discussions
case was not prejudiced by
equal treatment as do similarly
the in-
situated
and his subsequent trial
testimony did
surviving spouses."
former's presence. The
majority con-
not constitute a violation of
the Sixth
cluded that "there being
Justice Rehnquist dissented
in an
no tainted
Amendment.
evidence in this case,
opinion in which Chief Justice
no communication
Burger,
The case arose when
Brett Allen
of defense ,trategy
Justice Blackmun, and
to the prosecution
Justice Stewart
Bursey was arrested
for destroying
and no purposeful
joined. He argued that it
was consti-
intrusion by Weath-
property during a draft protest
action
tutional to treat the
erford," there was
sexes differently in
no violation of the
against a Selective Service
office in
this situation for
Sixth Amendment.
two reasons: (1) the
Justice White did
Columbia, South Carolina.
Under di-
alleged discrimination in
imply, however, that Sixth
this case was
Amendment
rections from his superior
Pete Strom,
rights might be violated
clearly giving benefit to
in a situation
widows instead
Jack Weatherford,
an undercover agent
where the defense could
of harming them economically,
prove that the
and thus
for the South Carolina
State Law En-
could be supported under
undercover agent advised his
the Equal
superiors
forcement Division, joined
Bursey in
of planned trial
Protection Clause as long
tactics or obtained
as it was rea-
damaging the draft board's
property.
information directly damaging
to the
6 lo