Law Meets Literature

Law Meets Literature

A Novel Approach for the

English Classroom

Gretchen Oltman

Johnna L. Graff

Cynthia Wood Maddux

ROWMAN & LITTLEFIELD

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Copyright © 2016 by Gretchen Oltman, Johnna L. Graff, and Cynthia Wood Maddux

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Oltman, Gretchen A., author.

Law meets literature : a novel approach for the English classroom / Gretchen Oltman,
Johnna L. Graff, Cynthia Wood Maddux.
pages cm
Includes bibliographical references and index.
ISBN 978-1-4758-2256-4 (hardback : alk. paper) — ISBN 978-1-4758-2257-1 (pbk. :
alk. paper) — ISBN 978-1-4758-2258-8 (ebook) 1. Law—Study and teaching—United
States. 2. Law and literature—United States. 3. English language—Study and
teaching. I. Graff, Johnna L., 1974– author. II. Maddux, Cynthia Wood, 1964– author.
III. Title.
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To our families, who supported and encouraged us on our
journeys as teachers and lawyers
 Acknowledgments

Special thanks to David Smith, Lincoln Public Schools

English curriculum specialist, who supported this adventure. We
also owe much gratitude to Dr. Anne Cognard, who encouraged
the creation of Special Topics literature courses and promoted
teacher creativity in practice. We gratefully acknowledge Sarah
Jubar at Rowman & Littlefield, whose enthusiasm for this topic
made this book possible.
 Chapter 1
Why Law and Literature?
The law, seen from one angle, is itself a literary form, for
what is the giving of evidence but controlled story-telling,
what is precedent but a batch of stories that have
previously been told?

- Margaret Atwood
The marriage of law and literature in the English language
arts (ELA) classroom is not an easy one to digest. After all, ELA
classrooms are sites of creativity, imagination, development,
and a search for understanding. As English teachers, we
immerse our students in the words on the page—twisting and
turning for meaning, deeper understanding, and a glimpse at
the human condition. Our students venture with us page by
page, living the lives of the characters, experiencing the
exhilaration and trauma as the plot twists, and experimenting
with the “what ifs” present in the study of literature. Law,
however, seems counterintuitive to the organic nature of the
class.
“Law” is formal, walled, and procedural. The study of law is
for those seeking to enforce rules and control actions. When
“law” and “literature” meet in the ELA classroom, a larger world
emerges—one where characters face the realities of conflict,
struggle through discovery of the unknown, and meet in the
corners of emotional rawness. The marriage, as it seems, can be
one of splendid attraction, appeal, and unearthing new ways of
reading, writing, and thinking within the walls of the traditional
literature classroom.
Law and literature as a thematic approach to any ELA
classroom is a way to purposefully engage students in the study
of literary elements centered around a common legal theme
while using cornerstone texts, seminal historical pieces, and
technical writings. The legal theme might include the same
thematic pieces found in today’s classroom textbooks and
curriculum, such as justice, fairness, equality, and mercy. These
themes, when paired with required reading, ancillary additional
readings, and engaging student activities, serve a dual purpose:
to engage in the scholarly understanding of literature while also
integrating law as a connected theme between real life and the
life that lives within the literature itself.
Surrounded by a culture that engages in legal debates,
televised trials, trial-based podcasts, and legal-themed thriller
movies and television shows, today’s students find themselves
bombarded with images of lawyers and courtrooms from a
variety of perspectives and judgments. Criminals are depicted
as heroes. Heroes are criminalized through social media
campaigns. Right bleeds into wrong. Moral hovers near the
immoral.
The sheer confusion and mess of contradictions about the
efficiency of or fairness of legal processes can be highly
appealing but difficult for emerging adults to navigate. The
popularity of an emotionally based trial or a flashy crime scene
is only one facet of the legal profession. The other is how
literature as an art form adapts the law to its own needs and
suggests how legal issues are reconceptualized as modern
Americans and the law are reconfigured.
Thus, the ELA classroom is ripe to embrace both law and
literature as a way to open new worlds of discussion,
consideration, and moral exploration. Incorporating legal texts,
documents, cases, primary documents, and other related
readings into the ELA classroom provides a new opportunity to
explore the traditional facets of the ELA curriculum through a
different lens—one with an eye focused on text complexity,
literary aptitude, and skill development.
As the ELA classroom faces the demands of meeting the
needs of the 21st-century learner and with the Common Core
State Standards’ emphasis on incorporating seminal U.S.
documents of historical and literary significance, literature
teachers have the opportunity to use case law, primary
documents, and other legal pieces as lead and supplementary
texts within literature courses for legitimate curricular reasons.
 There is a practical side to teaching law and literature
together as well. Today’s standards push for improved exposure
to nonfiction texts and technical works. The ELA classroom is no
longer focused on fiction alone but on the types of readings and
writings that students are exposed to in everyday life. The
Common Core State Standards present the following standards
in regard to incorporating legal texts directly into the ELA
classroom:

CCSS.ELA-Literacy.RI.11-12.8
Delineate and evaluate the reasoning in seminal U.S. texts,
including the application of constitutional principles and use
of legal reasoning (e.g., in U.S. Supreme Court majority
opinions and dissents) and the premises, purposes, and
arguments in works of public advocacy (e.g., The Federalist,
presidential addresses).

CCSS.ELA-Literacy.RI.11-12.9
Analyze seventeenth-, eighteenth-, and nineteenth-century
foundational U.S. documents of historical and literary
significance (including The Declaration of Independence, the
Preamble to the Constitution, the Bill of Rights, and Lincoln’s
Second Inaugural Address) for their themes, purposes, and
rhetorical features.

Clearly, the rationale is present to expand the traditional

ELA curriculum to include a variety of legal writings. Legal
material exposes students to higher levels of readability while
increasing thematic understanding when paired with a
traditional text. Such texts offer not only the ability to meet
these standards but also expose students to new and innovative
ways of thinking about such documents and texts.

WHY LAW AND LITERATURE WORKS IN THE ELA

CLASSROOM
How does any English teacher effectively incorporate legal
documents into the ELA classroom? This book proposes a
thematic approach wherein an overarching theme common to
most literature classrooms (justice, fairness, liberty, etc.) is
studied through texts that have legal elements, either through
plot features such as litigation between characters or through
other legal facets such as the rise of an unlikely hero against a
society of oppression.
Using one common theme, students examine literary
elements presented by a variety of authors written throughout
history, thus opening the door to explore culturally relevant
texts, modern contemporary pieces, and time-honored texts
written hundreds of years prior to today. Some texts are
commonplace and found on literature bookshelves or are
required readings in many schools. Some are typically found in
social science classrooms. Others are primary texts (case law,
state or federal laws, or judicial opinions) accessible via the
Internet through common search tools.
Too often, students in traditional literature courses are
exposed to a series of similar types of literature, such as short
stories, that fail to connect in any way except for the fact that
they are short stories. Integrating a common theme allows
students to focus their study of literature and comparatively
analyze literary differences.
An example of the application of this idea could be a study
of the literary element “setting” and allowing students to
compare the ways in which different authors depict the
“setting” of a trial or courtroom. Conversely, a study of
character could analyze how sympathetic different lawyer
characters are in relation to their clients and what that says
about the human condition and judgment of a character.
Law as a theme opens itself to the discovery of nearly every
literary element: tone, mood, characterization, and plot are all
discoverable within a legal story or case. Additionally, law as a
theme does not date itself. Literature can be pulled from the
latest headlines or can date back to Shakespeare, as was stated
in Henry VI, “The first thing we do is kill all the lawyers.” Studies
of law and literature are not regulated to a certain time period
or literary genre. Law transcends all traditional literary
boundaries such as drama, poetry, storytelling, fiction, and
nonfiction and offers a bounty of opportunity and invigorating
discussion.
Lenora Ledwon discussed the importance of this specific
content combination in literature studies. In her preface to the
text Law and Literature: Text and Theory, she notes three
reasons for the study of these interdisciplinary fields:
First, the demand for competent legal writers in the world
has increased the interest in language, including word choice,
metaphors, and storytelling.
Second, literary studies offer a different way of looking at
the law—a process of trying to view the world from multiple
perspectives. Ledwon offered this example: “When is a
corporation like a human being?” is to ask something similar to
Lewis Carroll’s riddle, “When is a raven like a writing desk?” (x).
Studying law as a field of literature, of words and puzzles,
makes the law more attainable to the common person.
The third reason for the combined study of law and
literature is the human factor: the idea that the law is innately
part of all of us, with its flaws and imperfections as well as its
moments of immutable beauty. To study law and literature is to
study humanity in its rawest, most vulnerable form.
The nearly unlimited options in the field of law and literature
cause some despair in how to select an appropriate text within
an already established thematic element guiding the ELA
classroom. This book can assist with that dilemma. As practicing
teachers of ELA courses, we have experimented with a variety
of literary choices and have a keen eye for attractive pieces that
clearly fit within broader thematic elements.
As an example, students might read the renowned play
Inherit the Wind, which portrays a fictional account of the
famous 1925 Scopes Monkey Trial, discuss the characters and
events of the play, and then lead into an assessment activity
where students act out an intriguing current debate on
evolutionism versus creationism and the role of schools on
moral or religious issues.
Alternatively, Mark Twain’s Pudd’nhead Wilson explores an
eccentric, outcast lawyer who never really fits into society until
he wins a trial in classic “Perry Mason” fashion. Students not
only study the character and his oddities but also the role of the
community in forming and shaping one’s identity.
Short stories, poetry, film, and alternative literary forms can
be woven through these thematic units. Innate in class
discussions are the ideas of why guilty people deserve lawyers,
the oaths of the legal profession, and the prosecution of
innocent people—perhaps the realization that the justice
system, like the human spirit itself, is not perfect in its attempts
to be fair.
The study of law and literature leads to the associated
studies of psychology, politics, morals, and ethics. Characters
often find themselves betrothed in ethical dilemmas—the path
of right or wrong, the course of good or evil.
The ability to discuss why humans respond in ethical or
unethical modes is unique to the literature classroom. For
decades it has been mostly ignored—we often assume our
students know how to make wise decisions yet ignore the fact
that we have not given them tools with which to make such
decisions. Students in the study of law and literature can
explore complex ethical questions such as, “Would you deny a
prisoner a heart transplant if the same transplant could go to
someone who is not in prison but does not have an immediate
need for it?” or “When was the last time you borrowed
something without returning it?”
Such questions force students to make a defensible
decision, right or wrong, while in the context of the literature
classroom where debate is frequent and being wrong is safe.
This prepares students for the larger purpose of forming an
analytic frame of mind, which is needed to make necessary
ethical and moral decisions throughout the course of one’s own
life.
Additionally, the study of law and literature focuses on
language. Students move beyond passive reading to intense
involvement as to why certain words are used by particular
characters in different legal settings and situations. One of the
most important facets of an English course is that students
know and understand why and how authors write for different
purposes and different audiences. The mass quantity of
literature about law opens itself up to writers who write for a
variety of purposes and through a plethora of passions.
Law and literature as a field of study to foster writing is also
directed at various audiences, from the general public to
practicing judges to criminals, allowing the student to read and
write narrative, technical, and poetic texts.
Finally, a lawyer’s art is the mastery of persuasion, and
students studying law and literature focus on how language can
be employed to persuade someone to believe an argument,
including the differences between manipulative persuasion and
honorable logic. Students emerge from the study as
experienced thinkers—citizens who are able to follow and
understand the judicial system and government processes
around them and who are able to effectively participate in a
knowledgeable, informed manner.

HOW TO USE THIS TEXT

This book is designed to serve as an easy-to-implement
resource for any secondary ELA teacher. One need not have
legal expertise in order to effectively incorporate legal
documents and themes in an ELA course, and this book will help
you in doing so.
The next chapter explains some main facets of how to read
legal literature. This book then will guide the reader through
several thematic units. Feel free to read each chapter
independently and in any order of your choosing. Each chapter
stands alone and can be implemented in any fashion or order
you see fit. Each chapter features:

Essential questions around which the suggested main

text and supplementary materials are built. The essential
questions are explored in different types of possible
literature with suggested pairings ranging from case law to
 presidential speeches to primary documents.
Suggested literature selections, both fiction and
nonfiction.
Applicable case law, including summaries of cases with
pre-, during, and post-reading questions and connections.
This section features accessible, relevant case law that can
be paired with any of the literature selections. Feel free to
mix and match according to your students’ interests and
your curricular goals.
Law and literature lesson in action. A thoughtful lesson
suggestion that focuses on a featured text and includes an
assessment opportunity and materials that complement the
thematic unit plan. This text serves as a complement to the
traditional textbook that most districts require and is not
meant to replace an entire curriculum but rather to provide
a new and intriguing way in which to teach content.
Notes from the authors. Concluding each chapter are
practical comments from the authors of this text noting our
own observations and experiences from teaching in a law-
and-literature-infused classroom.
Some text selections recommended in this book may be
appropriate for more mature students because of the
content or themes within the texts. To help identify these
potential texts, the initials MA are included after the text
description.

Any ELA teacher who opens this book will find an immediate
use, application, and ability to incorporate into any ELA
classroom.

A NOTE FROM THE AUTHORS

We are passionate about the combination of law and literature
not only because it is a personal interest of ours but because we
are confident that it meets the need to expose today’s students
to different types of texts in a meaningful way. Not only are the
national standards directing ELA teachers to use primary and
seminal legal texts as a means of teaching literary elements,
but also our students are being called to become more strategic
readers and writers.
On assessments, students are asked to “argue,” “prove,” or
“find evidence” to support a contention. Our students are being
asked to test in the same ways that lawyers are being asked to
defend a client in the courtroom. The study of law and literature
moves beyond knowledge and understanding and calls for
students to apply, synthesize, and evaluate highly complex
human issues.
We cannot ignore the trend to produce a student ready to
defend and stand up for something. We also recognize the
literature classroom is one of the safest places a student can
test these practices without risking personal failure or
destruction.
As teachers, we can model how to approach a problem from
multiple vantage points. We can argue the pros and cons of a
moral decision without having to actually carry it out in real life.
We can guide students to interpret meaning in language and to
learn how to identify persuasive techniques being used to
formulate an argument.
The study of law and literature is about more than appealing
to the dramatic lure of intrigue but is about the realistic element
that our students are being called to think, act, and write like
lawyers throughout the curriculum. By teaching literature with
legal tones, primary documents with historical significance, and
texts that provide opportunity for meaningful dialogue, we are
supporting the development of the more-skilled, outcome-based
results that assessments strive to measure while also protecting
the heart of the study of literature.
 Chapter 2
Case Law in a Literature
Classroom
Even as there are laws of poetry, so there is poetry in law.

- Anonymous
Incorporating “law” into the literature classroom can take
many forms, from studying fiction (e.g., novels, books, and
plays) to nonfiction pieces (e.g., case law, news accounts, and
presidential speeches). Traditionally, we tend to think case law—
published analysis and arguments about cases litigated in court
—is best reserved for the social studies classroom. However,
case law—the story of a conflict, people’s versions of events,
analysis of making a decision favoring one side or the other—is
actually very closely related to the type of literature taught in
the English language arts (ELA) classroom and is a great pairing
in order to foster student reading of primary legal texts within
the broader study of a thematic unit.
One need not be a lawyer to successfully integrate legal
pieces into the literature classroom, but rather one must
demonstrate a willingness to seek out nontraditional pieces with
legal themes and issues that directly relate to the themes
studied in the literature classroom.
For the purposes of integrating law into the literature
classroom, we have provided multiple resources throughout the
thematic chapters within this book that can aid in at least
pinpointing some cases that have wide application. In these,
you will find a variety of legal literature, including primary
documents (laws, speeches, published case decisions),
traditional fiction (novels, poems), and traditional nonfiction
(biographies, memoirs, essays, historical documents).
Regardless of the type of literature used, nearly all legal
literature will involve the common human elements of disputes
and ethical and moral debates that can be closely aligned with
the literature curriculum. Case law is a different form of
accounting for the disputes we face with our neighbors, our
enemies or loved ones, or against our government. While not
bound with a perfectly illustrated cover or sold in airport
bookstores, case law can be as provocative, beautifully written,
and complex as a bestselling novel. It is because of the
complexity of the real humans involved that we find case law to
be one of the strongest pieces that can be linked to literary
studies.
This chapter provides an overview of one of the most useful
and accessible pieces of legal literature—case law, the written,
published result of a trial or litigated event. For example, when
the U.S. Supreme Court hears arguments about a First
Amendment issue, the end result is a written synopsis and
analysis not only of the case itself (facts) but also of the
decision of the Court (finding or decision).
There are multiple ways to access published case law via
the Internet, and most are public domain documents, meaning
there are no copyright restrictions for sharing in an educational
setting. However, case law can, at times, be complex and
difficult for the nonlawyer to understand. This chapter presents
some time-saving tips in order to best make use of case law in a
literature classroom and illustrates the literary elements of one
landmark U.S. Supreme Court case in order to show the
practicality of finding the “story” within some fascinating cases
argued in real life by real people.

CASE LAW THROUGH A LITERARY LENS

Case law is oftentimes very similar to the elements of fiction
taught in the literature classroom. While we typically think of
case law as a judicial decision pronounced by a judge declaring
the outcome of a dispute, it is actually a richer, deeper
discussion that tells a story through real-life happenings.
Case law, after all, is generally centered around a dispute
between humans, and it is that human element that leads to the
more-complex elements we read in novels and stories. Feelings
are hurt, laws are broken, or disputes over property arise, and
the “characters,” or those parties in litigation, are then the
center of the story where conflict, perception, ethical principles,
and an eventual resolution then take the stage.
As we teach the study of literature, we are doing more than
asking students to recall the facts of a story, we are asking
them to dive deeper into understanding why characters behave
the way they do, why conflicts resolve in a particular fashion, or
how a setting can influence characters’ behavior. The same
holds true in case law and legal literature—the characters are
those involved in a conflict that has, for one reason or another,
landed them in a courtroom. That conflict might be one with
several moral or ethical dimensions, making it unclear how a
judge might decide in favor of one party over the other.

Elements of a Story versus Elements of a Case

Story Case Law

Character: Litigants/Parties:
The person or people involved in The plaintiff, defendant, petitioner,
the story (major and minor) respondent, judge, witnesses, jury

Setting: Location:
The place where the story takes The location where the dispute arose.
place. This might be a character’s Another setting that emerges in case law
hometown, a jail cell in Germany, or a is that of the courtroom itself and
candy shop in Bloomington, IN. It might sometimes a rich description of how
be a setting as intimate as a funeral or conflict plays out in a courtroom setting,
as exhilarating as a rock concert. The the dynamics between attorneys, and the
setting is the place wherein the observations of those watching a trial
characters find the action that makes take place.
the story worth reading.

Plot: Facts:
A series of events related to the The series of events that led to a
central conflict. This might be the rising legal struggle. This might be a conflict
action of the story or the actual “thing” between two landowners, a dispute
that makes the story a story. between a citizen and the state, or the
enforcement of a law believed to be
unjust.

Point of View: Argument:

The vantage point from which one The view from one side of the conflict
sees things. Stories can be told from versus the other. Common portrayals of
multiple viewpoints—a single legal “arguments” are seen in
character, an outside narrator, or mainstream Hollywood movies and tend
multiple characters viewing the same to be highly engaging and emotional,
scene. Point of view helps students while the arguments in case law tend to
understand the concept of perspective be based on important word choice and
and how seeing a problem from description so that anyone reading the
someone else’s perspective can reveal case has a clear understanding of why
hidden motives or underlying beliefs one party took up one side of the
not readily apparent from the surface. argument as opposed to the other.

Story Case Law

Conflict: Issue:
The struggle between a The thing, reason, or purpose that
character and someone/something caused the parties to end up in court. This
else. This might be the usual man might be an actual conflict between two
versus man, man versus self, man people, e.g., a car accident or a murder. The
versus nature studies. The issue might be one between a citizen and the
resolution solves the conflict, and government seeking a judgment as to what
while it may not settle the conflict the law really means. The resolution is a
completely, it does provide judgment or verdict, and in case law might
resolution to the reader as to how also include a dissent or concurrence to add
the characters will proceed after the a different perspective on the ruling itself.
conflict is worked out.

Theme: Rule of Law:

A central idea or lesson. A The central legal principle or established
theme in literature is really the law upon which the verdict/holding is based.
bigger idea that the reader walks Laws are typically pretty clear-cut—until
away with after reading the piece. people get involved and interpretations get
Perhaps it is the importance of muddy. Thus, the prevailing law will be
family, the need for a just society, present in case law, and while it is important,
or the consequences of immoral it is really the storytelling around that rule of
behavior. law that drives case law as an important
classroom tool.

In order to best illustrate the close relationships between

traditional elements of a story and those of case law, consider
Table 2.1.
The “story” will emerge in almost every case. As students
become familiar with sorting through the varied structures of
published cases, the availability of the necessary “elements” of
a story will peek through and provide a provocative base for
discussion and discourse within the classroom.
In order to illustrate the story elements within a case,
consider the following U.S. Supreme Court case, a 1986 case
involving a junior high student who delivered a provocative
student council election speech at a school assembly. Not only is
this case easy for most students to relate to, but it also involves
a clear dispute between a student and authority—a conflict that
can be found throughout literature.
The case, readily available through an Internet search, has
been pared down in order to eliminate footnotes and extraneous
references that might confuse a reader. Throughout the case, in
the teaching notes, we have identified how the “story” is played
out within the case as written by the justices of the U.S.
Supreme Court.

BETHEL SCHOOL DIST. NO. 403 V. FRASER, 478 U.S.

675 (1986)
Argued March 3, 1986
Decided July 7, 1986

CHIEF JUSTICE BURGER delivered the opinion of the Court.

We granted certiorari to decide whether the First
Amendment prevents a school district from disciplining a high
school student for giving a lewd speech at a school assembly.
Teaching Note: We are immediately told, in this case,
that the setting is a school assembly. This is a setting that
many students can relate to, have participated in, or can
imagine the context in which the speech takes place. A
discussion of the purposes and audience of assemblies and
mass speeches can be a great opener for studying this case.

IA

On April 26, 1983, respondent Matthew N. Fraser, a student

at Bethel High School in Pierce County, Washington, delivered a
speech nominating a fellow student for student elective office.
Approximately 600 high school students, many of whom were
14-year-olds, attended the assembly. Students were required to
attend the assembly or to report to the study hall. The assembly
was part of a school-sponsored educational program in self-
government. Students who elected not to attend the assembly
were required to report to study hall. During the entire speech,
Fraser referred to his candidate in terms of an elaborate,
graphic, and explicit sexual metaphor.
Two of Fraser’s teachers, with whom he discussed the
contents of his speech in advance, informed him that the
speech was “inappropriate and that he probably should not
deliver it,” and that his delivery of the speech might have
“severe consequences.”
Teaching Note: The characters begin to emerge: Fraser,
the entire high school of students, and teachers who
discussed his intent to deliver the speech. The cast is wide
and provides a variety of perspectives. Point of view is ripe
for discussion as students can uncover the motivations of the
different parties—including the real differences between how
students and teachers might perceive the same event.

During Fraser’s delivery of the speech, a school counselor

observed the reaction of students to the speech. Some students
hooted and yelled; some by gestures graphically simulated the
sexual activities pointedly alluded to in respondent’s speech.
Other students appeared to be bewildered and embarrassed by
the speech. One teacher reported that on the day following the
speech, she found it necessary to forgo a portion of the
scheduled class lesson in order to discuss the speech with the
class.
A Bethel High School disciplinary rule prohibiting the use of
obscene language in the school provides:

Conduct which materially and substantially interferes with

the educational process is prohibited, including the use of
obscene, profane language or gestures.

Teaching Note: The “law” in question in this case is

 actually a school policy and how strict it can be applied in a
public school setting in light of the First Amendment’s
freedom of speech provision. Basically, can schools restrict
freedom of speech when it takes place on the school’s time
and property? What does this mean for students? And what
does it mean for freedom of speech?

The morning after the assembly, the assistant principal

called Fraser into her office and notified him that the school
considered his speech to have been a violation of this rule.
Fraser was presented with copies of five letters submitted by
teachers, describing his conduct at the assembly; he was given
a chance to explain his conduct, and he admitted to having
given the speech described and that he deliberately used sexual
innuendo in the speech. Fraser was then informed that he would
be suspended for three days, and that his name would be
removed from the list of candidates for graduation speaker at
the school’s commencement exercises.
Teaching Note: A conflict is born: student versus school
authorities. This case has major characters (the student
Fraser, the assistant principal, the other students) and minor
characters (teachers whose classes were disrupted; school
counselors who witnessed the chatter during the speech;
Fraser’s dad, who challenges the school officials). The bigger
conflict here is really the student versus the authority of a
school’s interference with the First Amendment.

Respondent, by his father as guardian ad litem, then

brought this action in the United States District Court for the
Western District of Washington. Respondent alleged a violation
of his First Amendment right to freedom of speech and sought
both injunctive relief and monetary damages under 42 U.S.C.
1983. The District Court held that the school’s sanctions
violated respondent’s right to freedom of speech under the First
Amendment to the United States Constitution, that the school’s
disruptive-conduct rule is unconstitutionally vague and
overbroad, and that the removal of respondent’s name from the
graduation speaker’s list violated the Due Process Clause of the
Fourteenth Amendment because the disciplinary rule makes no
mention of such removal as a possible sanction.
The District Court awarded respondent $278 in damages,
$12,750 in litigation costs and attorney’s fees, and enjoined the
School District from preventing respondent from speaking at the
commencement ceremonies. Respondent, who had been
elected graduation speaker by a write-in vote of his classmates,
delivered a speech at the commencement ceremonies on June
8, 1983.
The Court of Appeals for the Ninth Circuit affirmed the
judgment of the District Court, holding that respondent’s speech
was indistinguishable from the protest armband in Tinker v. Des
Moines Independent Community School Dist.
Teaching Note: Sections like this that lay out what
damages a party is seeking, the ability or jurisdiction of a
court to hear a case, and some of the more-complex laws that
might be in play should not discourage you from using case
law. Part of the art of teaching case law is picking out the
meaningful pieces and minimizing the more-complex pieces
that do not add to the literary study. Sections like this, we
have found, are important to include but can also be
confusing for both teacher and student, so do not despair,
and focus on the interesting stuff!

II

This Court acknowledged in Tinker v. Des Moines

Independent Community School Dist. that students do not “shed
their constitutional rights to freedom of speech or expression at
the schoolhouse gate.” The Court of Appeals read that case as
precluding any discipline of Fraser for indecent speech and lewd
conduct in the school assembly. That court appears to have
proceeded on the theory that the use of lewd and obscene
speech in order to make what the speaker considered to be a
point in a nominating speech for a fellow student was
essentially the same as the wearing of an armband in Tinker as
a form of protest or the expression of a political position.
The marked distinction between the political “message” of
the armbands in Tinker and the sexual content of respondent’s
speech in this case seems to have been given little weight by
the Court of Appeals. In upholding the students’ right to engage
in a nondisruptive, passive expression of a political viewpoint in
Tinker, this Court was careful to note that the case did “not
concern speech or action that intrudes upon the work of the
schools or the rights of other students.”
Teaching Note: This case happens to go into a historical
review of First Amendment student speech cases and
conflicts. This helps us understand the conflict and how the
scope of the conflict is bigger than just Fraser’s school but
has impacted other students in other parts of the country.
This might be “exposition” in literary studies—the important
background we need in order to understand the plight of the
characters in the conflict.

III

These fundamental values of “habits and manners of

civility” essential to a democratic society must, of course,
include tolerance of divergent political and religious views, even
when the views expressed may be unpopular. But these
“fundamental values” must also take into account consideration
of the sensibilities of others, and, in the case of a school, the
sensibilities of fellow students.
The undoubted freedom to advocate unpopular and
controversial views in schools and classrooms must be balanced
against the society’s countervailing interest in teaching
students the boundaries of socially appropriate behavior. Even
the most heated political discourse in a democratic society
requires consideration for the personal sensibilities of the other
participants and audiences.
The First Amendment guarantees wide freedom in matters
of adult public discourse. It does not follow, however, that
simply because the use of an offensive form of expression may
not be prohibited to adults making what the speaker considers a
political point, the same latitude must be permitted to children
in a public school.
Teaching Note: Here is the first great lead from this
case into a meaningful class discussion: Should public school
students have the same rights as adults? Why or why not?
Open-ended discussions lead to engagement within the
context of the case. The conflict of a student versus assistant
principal suddenly has more depth and meaning—multiple
layers—as do the conflicts that most characters we study
face.

Surely it is a highly appropriate function of public school

education to prohibit the use of vulgar and offensive terms in
public discourse. Indeed, the “fundamental values necessary to
the maintenance of a democratic political system” disfavor the
use of terms of debate highly offensive or highly threatening to
others. Nothing in the Constitution prohibits the states from
insisting that certain modes of expression are inappropriate and
subject to sanctions. The inculcation of these values is truly the
“work of the schools.”
Teaching Note: Fostering a discussion of the purpose of
public education, this case illustrates some of the larger
social issues within the case. What is the purpose of public
schooling? How does the Court’s summary here compare to
students sitting in classrooms today? Should it differ? This
section provides a great philosophical ground ripe for
discussion about the state of affairs.

The pervasive sexual innuendo in Fraser’s speech was

plainly offensive to both teachers and students—indeed to any
mature person. By glorifying male sexuality, and in its verbal
content, the speech was acutely insulting to teenage girl
students. The speech could well be seriously damaging to its
less mature audience, many of whom were only 14 years old
and on the threshold of awareness of human sexuality. Some
students were reported as bewildered by the speech and the
reaction of mimicry it provoked.
We hold that petitioner School District acted entirely within
its permissible authority in imposing sanctions upon Fraser in
response to his offensively lewd and indecent speech. Unlike the
sanctions imposed on the students wearing armbands in Tinker,
the penalties imposed in this case were unrelated to any
political viewpoint.
The First Amendment does not prevent the school officials
from determining that to permit a vulgar and lewd speech such
as respondent’s would undermine the school’s basic educational
mission. A high school assembly or classroom is no place for a
sexually explicit monologue directed toward an unsuspecting
audience of teenage students. Accordingly, it was perfectly
appropriate for the school to disassociate itself to make the
point to the pupils that vulgar speech and lewd conduct is
wholly inconsistent with the “fundamental values” of public
school education.
The judgment of the Court of Appeals for the Ninth Circuit is
Reversed.
Teaching Note: The resolution is presented. The school
is allowed to prevent vulgar and lewd conduct and speech
inconsistent with the “fundamental values” of public school
education. This is meant to protect the mission of the schools,
which is to teach and promote the values necessary for a
democracy.
Students might disagree with this outcome, but they
should consider why the Court’s majority protected the school
assembly in this fashion. As the resolution is presented, is the
conflict actually resolved? The next sections present
dissenting and concurring arguments, which provide a
 different perspective and interpretation of the issue—much
like we see characters do in traditional literature. A conflict
might be resolved, but it does not mean that all characters
are in agreement nor that they live happily ever after.
It is interesting to observe if students can articulate
arguments for or against the judgment and whether or not
they support their argument with facts or with emotions.
Expect vibrant discussion with these types of questions—the
exact type of discussions for which literature classrooms are
known!

JUSTICE MARSHALL, dissenting.

I dissent from the Court’s decision, because in my view the
School District failed to demonstrate that respondent’s remarks
were indeed disruptive. The District Court and Court of Appeals
conscientiously applied Tinker v. Des Moines Independent
Community School Dist., and concluded that the School District
had not demonstrated any disruption of the educational
process.
I recognize that the school administration must be given
wide latitude to determine what forms of conduct are
inconsistent with the school’s educational mission, nevertheless,
where speech is involved, we may not unquestioningly accept a
teacher’s or administrator’s assertion that certain pure speech
interfered with education. Here the School District, despite a
clear opportunity to do so, failed to bring in evidence sufficient
to convince either of the two lower courts that education at
Bethel School was disrupted by respondent’s speech. I therefore
see no reason to disturb the Court of Appeals’ judgment.
Teaching Note: Justice Marshall’s dissent questioned the
power of school administrators. This question arises in
literature as characters question authority in many forms—
presidents, political leaders, parents, God, and other sources
—when characters lose power in one form or another. How do
characters typically fight powerful figures? When do
characters succeed in battling these figures? What strategies
 are used to overcome the power these figures hold?

JUSTICE STEVENS, dissenting.

“Frankly, my dear, I don’t give a damn.”
When I was a high school student, the use of those words in
a public forum shocked the Nation. Today Clark Gable’s four-
letter expletive is less offensive than it was then. Nevertheless, I
assume that high school administrators may prohibit the use of
that word in classroom discussion and even in extracurricular
activities that are sponsored by the school and held on school
premises. For I believe a school faculty must regulate the
content as well as the style of student speech in carrying out its
educational mission.
It does seem to me, however, that if a student is to be
punished for using offensive speech, he is entitled to fair notice
of the scope of the prohibition and the consequences of its
violation. The interest in free speech protected by the First
Amendment and the interest in fair procedure protected by the
Due Process Clause of the Fourteenth Amendment combine to
require this conclusion.
This respondent was an outstanding young man with a fine
academic record. The fact that he was chosen by the student
body to speak at the school’s commencement exercises
demonstrates that he was respected by his peers. This fact is
relevant for two reasons. It confirms the conclusion that the
discipline imposed on him—a three-day suspension and
ineligibility to speak at the school’s graduation exercises—was
sufficiently serious to justify invocation of the School District’s
grievance procedures.
More importantly, it indicates that he was probably in a
better position to determine whether an audience composed of
600 of his contemporaries would be offended by the use of a
four-letter word—or a sexual metaphor—than is a group of
judges who are at least two generations and 3,000 miles away
from the scene of the crime.
Teaching Note: Notice how Justice Stevens’s description
 of the student was vastly different than that from the
description in the original case. He noted different facts about
the student than the rest of the Court did—just as characters
interact and observe different traits about each other in
literature. A jewel thief might be a mother caring for her
terminally ill child, while a popular king might be a murdering
villain after nightfall. Again, revisiting the concept of
character and how others interpret it is a great discussion
point here.

The fact that the speech may not have been offensive to his
audience—or that he honestly believed that it would be
inoffensive—does not mean that he had a constitutional right to
deliver it. For the school—not the student—must prescribe the
rules of conduct in an educational institution. But it does mean
that he should not be disciplined for speaking frankly in a school
assembly if he had no reason to anticipate punitive
consequences.
One might conclude that respondent should have known
that he would be punished for giving this speech on three quite
different theories: (1) It violated the “Disruptive Conduct” rule
published in the student handbook; (2) he was specifically
warned by his teachers; or (3) the impropriety is so obvious that
no specific notice was required. I discuss each theory in turn.

The Disciplinary Rule

At the time the discipline was imposed, as well as in its

defense of this lawsuit, the school took the position that
respondent violated the following published rule:

In addition to the criminal acts defined above, the

commission of, or participation in certain noncriminal
activities or acts may lead to disciplinary action. Generally,
these are acts, which disrupt and interfere with the
educational process.
Disruptive Conduct. Conduct which materially and
 substantially interferes with the educational process is
prohibited, including the use of obscene, profane language
or gestures.

Based on the findings of fact made by the District Court, the

Court of Appeals concluded that the evidence did not show
“that the speech had a materially disruptive effect on the
educational process.”
The Court of Appeals explained the basis for this conclusion:

[The] record now before us yields no evidence that Fraser’s

use of a sexual innuendo in his speech materially interfered
with activities at Bethel High School. While the students’
reaction to Fraser’s speech may fairly be characterized as
boisterous, it was hardly disruptive of the educational
process. In the words of Mr. McCutcheon, the school
counselor whose testimony the District relies upon, the
reaction of the student body ‘was not atypical to a high
school auditorium assembly.’ In our view, a noisy response
to the speech and sexually suggestive movements by three
students in a crowd of 600 fail to rise to the level of a
material interference with the educational process that
justifies impinging upon Fraser’s First Amendment right to
express himself freely.
We find it significant that although four teachers delivered
written statements to an assistant principal commenting on
Fraser’s speech, none of them suggested that the speech
disrupted the assembly or otherwise interfered with school
activities. See, Finding of Fact No. 8. Nor can a finding of
material disruption be based upon the evidence that the
speech proved to be a lively topic of conversation among
students the following day.

Thus, the evidence in the record, as interpreted by the

District Court and the Court of Appeals, makes it perfectly clear
that respondent’s speech was not “conduct” prohibited by the
disciplinary rule. Indeed, even if the language of the rule could
be stretched to encompass the nondisruptive use of obscene or
profane language, there is no such language in respondent’s
speech.
What the speech does contain is a sexual metaphor that
may unquestionably be offensive to some listeners in some
settings. But if an impartial judge puts his or her own views
about the metaphor to one side, I simply cannot understand
how he or she could conclude that it is embraced by the above-
quoted rule. At best, the rule is sufficiently ambiguous that
without a further explanation or construction it could not advise
the reader of the student handbook that the speech would be
forbidden.
Respondent read his speech to three different teachers
before he gave it. Mrs. Irene Hicks told him that she thought the
speech “was inappropriate and that he probably should not
deliver it.” Steven DeHart told respondent “that this would
indeed cause problems in that it would raise eyebrows.” The
third teacher, Shawn Madden, did not testify. None of the three
suggested that the speech might violate a school rule.
The fact that respondent reviewed the text of his speech
with three different teachers before he gave it does indicate
that he must have been aware of the possibility that it would
provoke an adverse reaction, but the teachers’ responses
certainly did not give him any better notice of the likelihood of
discipline than did the student handbook itself. In my opinion,
therefore, the most difficult question is whether the speech was
so obviously offensive that an intelligent high school student
must be presumed to have realized that he would be punished
for giving it.
Teaching Note: We learn facts here about Fraser’s
interactions with some of those “minor” characters in his case
—the teachers who suggested, in one way or another, that
giving the speech was not clearly violating school policy in
such a way that their initial response was shock and dire
warnings to Fraser.
Consider the importance of minor characters in literature
—the bystanders who witness a murder, the children who are
separated after their parents divorce, or the parent who loses
 a child in a war. The minor characters sometimes have the
most interesting insights—and we should be purposely
looking at the perspective of others beyond the main players
in a story.

Justice Sutherland taught us that a “nuisance may be

merely a right thing in the wrong place,—like a pig in the parlor
instead of the barnyard.” Vulgar language, like vulgar animals,
may be acceptable in some contexts and intolerable in others.
Indeed, even ordinary, inoffensive speech may be wholly
unacceptable in some settings.
It seems fairly obvious that respondent’s speech would be
inappropriate in certain classroom and formal social settings. On
the other hand, in a locker room or perhaps in a school corridor
the metaphor in the speech might be regarded as rather routine
comment. If this be true, and if respondent’s audience consisted
almost entirely of young people with whom he conversed on a
daily basis, can we—at this distance—confidently assert that he
must have known that the school administration would punish
him for delivering it?
For three reasons, I think not. First, it seems highly unlikely
that he would have decided to deliver the speech if he had
known that it would result in his suspension and disqualification
from delivering the school commencement address. Second, I
believe a strong presumption in favor of free expression should
apply whenever an issue of this kind is arguable. Third, because
the Court has adopted the policy of applying contemporary
community standards in evaluating expression with sexual
connotations, this Court should defer to the views of the district
and circuit judges who are in a much better position to evaluate
this speech than we are.
Teaching Note: Notice the clear rationale provided by
this dissenting justice. The choice of words, organization, and
execution of the rationale in less than five sentences leave a
reader knowing exactly from where the decision emerged. It
is important to realize that dissenting opinions illustrate the
 difference of opinions that naturally occur. Dissenting
opinions are great examples of how you can distinguish your
position against a theme with proper evidence using the
same “text” or “set of facts.”

I would affirm the judgment of the Court of Appeals.

Teaching Note: This case, while of high interest to most
students, is illustrative of how a case can be pared down to
its essentials and illustrates the presence of the elements of a
“story” within a real-life case.

TIPS FOR TEACHING LITERATURE USING CASE LAW

Case law will vary in its layout, choice of words, and analytical
strategies, but the story will still be present, so it may take a bit
of rearranging, articulation, and purposeful organization in order
to help make case law read a bit clearer for literature students.
After integrating case law into our literature classrooms for
several years, we have some teaching tips and tricks that are
useful when incorporating case law into your repertoire:

1. Be clear about the literary elements that you want

students to study within a case. We provide a comparison to
case law as “story” in this text. Other authors have
compared the traditional plot structure to the rise and fall of
conflict within a case (Gemmette 1995). However you teach
literary elements, clearly identify how those elements are
played out in a case.
If “conflict” is the key element that students should be
tearing apart, choose a case with a conflict that students
not only relate to but that has a clear conflict embedded in
it—not one that takes a great deal of searching and
deciphering to uncover. You should not be choosing cases
that are muddy or too complex for students to understand.
2. Be confident that the story will be there. Do not give up
on a case simply because it is not in the right literary
 element “order” that you find in a typical novel. The conflict
might be described first, and the point of view might be on
page five of a case. Be patient, and find the story that led to
the case occurring in the first place.
3. When you find a case that might be useful to teach,
search the web to read news accounts of the case when it
was litigated. This not only aids in understanding the case
itself but also helps understand some of the procedural
issues of why a case is heard in a certain court or why
certain parties are or are not involved in a case.
In addition, news reports, when truly written in an
unbiased fashion, often are great tutorials for understanding
the rule of law—that is, reports about a case will often
summarize the legal issue involved in a way that is clear
and simplified for a nonlegal audience.
4. Highlighters are a great way for students to pick out
story elements. Use different colors for the different
elements, and have students compare their highlighting to
see if they chose the same elements or where differences
arose. In a digital classroom, students can cut and paste
pieces of a case into a literary elements chart. It is for this
reason that we often choose to print cases on paper
whenever possible. The hands-on ability to read a case,
highlight it, and move seamlessly from paragraph to
paragraph tends to aid in reader involvement.
5. Sometimes, reading the first sentence of every
paragraph in a case is a great introduction. Initial sentences
tend to be topic sentences that give an overview of an
entire paragraph with precision. Not only is this a quick way
to understand a case, but it is also a great illustration for
student writing development and how one should be able to
read topic sentences in a paper and gain understanding for
the content of the paper.
6. Take time to edit published cases for your students’
ease of reading. As illustrated in the Fraser case in this
chapter, we cut references and page markers used for legal
research purposes. As classroom teachers using a public
 domain document (government publications), we took the
latitude to simplify the case. One might also remove
technical pieces of a case, taking care to note that the case
has been altered for the purposes of literary study and
should not be misconstrued as a full representation of the
case.
7. Find cases that clearly align to the thematic unit in
which the case will reside. Do not eliminate cases because
the factual elements are different than those you find in the
literature with which it is being paired, but find pieces that
complement each other.
8. Use a legal dictionary when you need one. Remember,
case law is written by legal experts and most often read by
lawyers. Its first purpose is not the literature classroom.
Therefore, use resources that aid in understanding the
definition of “stare decisis” or the layout of the federal court
structure. A simple web search on whatever you are trying
to understand will generally produce a multitude of results.

WHERE DO I FIND CASE LAW TO USE AS

LITERATURE?
Most case law is published in a formal format on judicial
websites; however, not every case in every jurisdiction is
published nor is every case binding in every location throughout
the country. What a Vermont court decides does not necessarily
mandate what can happen in Wyoming. Courts are limited to a
jurisdiction, or a certain area in which the court can decide a
case that is brought before it.
The U.S. Supreme Court is the only court whose decisions
impact the entire country, and therefore its decisions are of
primary importance when using legal pieces in the literature
classroom. U.S. Supreme Court cases are easy to find; are
clearly written in a professional, polished fashion; and tend to
host the most pressing issues facing the country at the time.
Take, for instance, cases heard by the U.S. Supreme Court in
the past decade (2005–2015), which ranged from the
constitutionality of gay marriage to the use of alternative drugs
for lethal injections, arguments for and against affirmative
action in collegiate settings, and the free speech rights of high
school students. Not every U.S. Supreme Court case will be ripe
for use in the literature classroom—in fact, many are so complex
or so narrow in application that it is virtually impossible to use
some of these cases within the classroom. However, the larger
cases that deal with more fundamental questions of citizenship
or the human condition (rights, privileges, citizenship, authority,
control) can lead to rich discussions around the central themes
with which the case is paired within the classroom.
U.S. Supreme Court cases are typically easily found on the
official Court website at www.supremecourt.gov/. Within this site
are links to “opinions” or the published final outcome of cases
the Court has considered throughout history. Sites like the U.S.
Supreme Court’s also provide a wealth of additional materials
such as transcripts or recordings of live oral arguments directly
from the courtroom or links to media accounts of the Court’s
agenda. State courts usually host similar websites and vary in
what is published in an online format.
We recommend experimenting with the terms used in web
searches. As we prepared this text and attempted to identify
cases that related to “punishment” or “motives and intentions,”
it became clear that those terms alone would not suffice in
order to easily identify relevant cases. Therefore, we searched
for federal-level cases—often beginning with the U.S. Supreme
Court, as those are easy to find and access—and often included
a vast array of political and newsworthy commentary to
accompany student reading.
The short answer of where to find a case: anywhere. Search
the web with care. Find news accounts of cases that may have
dealt with a similar issue to the one that the characters in your
novel are facing. Talk to social studies teachers and lawyers in
your community about cases that they may know relate to a
certain theme. Keep an open mind when reading news accounts
about litigated events to see how a “story” is told.
The best way to find a case is through observant reflection
of current events. Some cases are overturned or reversed over
the course of time—this is something to be cognizant of in a
case search—but since the use of case law is used with
literature and not merely as binding legal principles, even an
overturned case can be useful for teaching purposes.

A NOTE FROM THE AUTHORS

As we prepared this chapter, we reflected on how we each have
located the cases that we teach in our own literature classroom.
Some were famous cases that most people have some
recollection of studying in high school civics class. Other cases
were on our minds more recently because they were
newsworthy and hit the popular culture circuit at some point
during our teaching careers. Yet other cases were from random
web searches in which we attempted to find similar fact
situations that related to a novel we were teaching.
The Internet is deep in resources, and we were reluctant to
provide any specific sources here for fear of limiting a reader’s
potential search or fostering a belief that there is actually a
formula for finding the perfect case to fit a particular literature
unit. While it takes time, we have found that locating cases
actually is not a difficult task, so take heart and do not get
overwhelmed. It can be done!
We are often choosing one case among several potential
contenders that will pique student interest and clearly align with
our curricular goals. When teaching case law, we find ourselves
studying word choice, the beauty of argument, and the clear
discernment of the argument used by those writing legal
opinions. This is easy to overlook in a search for characters and
conflicts, but one should be careful to remember that the writing
within a case, or how that story is told, can be just as
meaningful in literary studies. This is really where we all fell in
love with law in the first place—we saw the characters living
literary tales and knew that the connection to our classrooms
was not a large leap to take.
 Chapter 3
Standing Up against Injustice
What law of God have I broken? Why should I still look to the
gods in my misery? Whom should I summon as an ally? For
indeed because of piety I was called impious. If this
proceeding is good in the gods’ eyes I shall know my sin,
once I have suffered. But if Creon and his people are the
wrongdoers let their suffering be no worse than the injustice
they are [giving] out to me.

- Antigone
A 14-year-old boy takes on the government, disobeying the
central law, only to be killed in response. A 16-year-old girl
outsmarts the totalitarian government, saving her and her
“foe’s” life. A family moves into an all-white neighborhood,
echoing the author’s own family’s reality of standing up against
racially motivated housing covenants. A teacher who teaches
evolution finds himself on trial.
A 19th-century thinker stands up against slavery by refusing
to pay taxes. A civil rights activist uses the power of words to
speak out against the inequality African Americans faced during
the civil rights movement and writes a letter from jail declaring
it one’s moral responsibility to disobey an unjust law. A
president changes the course of history.
These stories share a common factor: someone believes a
rule or law is wrong and takes action. A debate ensues.
Resolution occurs, but one or both sides must accept that a
change must take place in order to move forward. Teaching this
concept identifies that there are conflicts in all walks of life and
that resolving those conflicts, sometimes at the expense of
relinquishing a tightly held belief, might be necessary in order to
move the majority forward.
Throughout U.S. history, many people have had the courage
to stand up for what they thought was right, even in light of
being unpopular, denigrated, or suppressed. Ideally, laws are
meant to promote the common good. But what happens when
people think a particular law is in conflict with their morality or
sense of justice? From a law preventing a person from practicing
his or her religion to a law discriminating against a group of
people, the U.S. Supreme Court has decided many cases that
illustrate individuals standing up for what they believe is right.

STANDING UP AGAINST INJUSTICE: ESSENTIAL

QUESTIONS
FOR THIS THEME
1. Should a citizen break the law in order to stand up for
the greater good?
2. When your beliefs are not part of the greater good, how
do you thrive as part of the minority?

SUGGESTED LITERATURE SELECTIONS

Fiction

“Harrison Bergeron,” by Kurt Vonnegut: In this short

story, constitutional amendments mandate that all citizens
be equal, but Harrison realizes government-mandated
handicaps are an injustice, and Harrison sacrifices his life in
order to stand up against that injustice.
What this text has to offer: An opportunity to discuss the
power of government when it is unbalanced.
The Hunger Games trilogy, by Suzanne Collins: This
dystopian novel series finds Katniss Everdeen outwitting the
power of Panem’s Capital as she defiantly participates in the
annual life-or-death Hunger Games.
What this text has to offer: The ability of a single person
to have a sweeping impact on an unjust form of control as
others recognize and join together against the government.
A Raisin in the Sun, by Lorraine Hansberry: In this play,
an African American family anticipates moving into a
“white” neighborhood yet are faced with attempts to
 suppress the move, including a financial payoff from the all-
white homeowner’s association.
What the text has to offer: An opportunity to discuss the
sacrifices a person is willing to make in order to stand up for
what is “right.” This play also offers significant value in
discussing cultural norms, societal expectations, and how
the definition of “right” changes as society evolves.
Inherit the Wind, by Jerome Lawrence and Robert Edwin
Lee: This play showcases a courtroom drama based on the
1920s Scopes Monkey Trial. A high school teacher disrupts
the town’s equilibrium by offering evolution as a scientific
theory. The staunchly conservative town goes all out in
order to show support for a wide cast of characters,
uncovering hidden beliefs about God, liberty, and
government.
What this text has to offer: This play weighs the
question, Does the passage of time change the definitions
of “right” and “wrong”? And who controls disseminating the
information necessary for one to determine his or her own
belief as truly right or wrong?

Nonfiction

“Civil Disobedience,” by Henry David Thoreau:

Thoreau’s refusal to pay taxes was his way of opposing the
government’s endorsement of slavery and the Mexican
American War. He argued that a citizen should break a law
in order to do what he or she deemed “right.”
What this text has to offer: An opportunity to discuss the
concept of “right.” If people are to stand up for what is
“right” rather than the belief of the majority, how does one
determine “right”? Of course, society would now agree that
Thoreau’s stance on slavery is “right” today, but what about
issues that divide our society currently, such as gay
marriage, abortion, the death penalty, or even a rule at
school, such as the effectiveness of out-of-school
suspension to punish students.
 “I Have a Dream,” by Martin Luther King Jr.: In this
speech, King professes his vision of a land free of racism
and inequality to a massive gathering of civil rights
proponents. King was encapsulating the nation’s movement
toward a civil rights movement and protected liberty for all.
What this text has to offer: The speech offers ties to
primary documents like the Emancipation Proclamation
while also offering a vision of what the speaker held close as
a personal belief structure. How does one push a society to
a new vision of “right”? How does an individual stand up for
the minority?
“Letter from Birmingham Jail,” by Martin Luther King Jr.:
The “Call for Unity” letter, by eight clergymen appearing in
the Birmingham newspaper denouncing King’s nonviolent
demonstrations, prompted this letter in response. King used
artful rhetoric to counter all of the points raised by the
clergymen to show why the cause he fought for was indeed
just.
What this text has to offer: This letter provides readers
the opportunity to study a masterful use of the rhetorical
triangle and the ability to provide a strong counterargument
with the use of civil discourse. How long must people wait
for unjust laws to be changed?
Emancipation Proclamation: This executive order, issued
by President Abraham Lincoln, demanded that the 10 states
that seceded free all slaves.
What this text has to offer: This primary document
offers a discussion of how a leader uses his or her position
to change the will of the people. How does a leader define
“right” for a society? What does a citizen in the minority do
when a leader enacts a law that differs from a personal
belief?

APPLICABLE CASE LAW

Case #1: Reynolds v. United States, 98 U.S. 145

(1878)
Facts of the Case

George Reynolds, a member of the Mormon Church, was

convicted of the crime of bigamy. He argued that he should not
be convicted of bigamy because the Mormon Church believes in
the practice of polygamy, and he was acting in accordance with
those beliefs.

Question

Does the law against bigamy violate the First Amendment’s

free exercise clause?

Conclusion

No. Chief Justice Morrison R. Waite, writing for a unanimous

Court, held that the statute against polygamy did not violate the
First Amendment. The First Amendment protected religious
belief, but it did not protect religious practices that are judged
to be criminal.

Before-Reading Activities for Reynolds v. United States

Although there are other errors that the Supreme Court

addresses, this discussion focuses on error 5: Should the
accused have been acquitted if he married the second time
because he believed it to be his religious duty? Students could
just read this part of the case.

1. One of the reasons the Court states that the law against
polygamy is not a violation of the First Amendment is
“[p]olygamy has always been odious among the northern
and western nations of Europe, and until the establishment
of the Mormon Church, was almost exclusively a feature of
the life of Asiatic and of African people” (98 U.S. at 164).
Provide students with a brief history of Mormonism. How
 does a society define “religion”? How does the culture’s
biases affect what a society considers a “legitimate”
religion?
2. What are the functions of criminal laws? Does a law
against bigamy serve any of those functions?

Text-Dependent Questions for Reynolds v. United States

1. How does the Court define “religion”? What factors

influence the Court’s definition of religion? Is the history of a
religion (or lack of history) a factor? Apply what the Court
says about the history of religion in Wisconsin v. Yoder to
this case.
2. How does the Court define criminal intent? Why does
the Court determine that the accused did have criminal
intent?
3. Discuss the distinction the Court makes between beliefs
and practices. How does the Court justify the government’s
interference in religious practices? Does the analogy with
human sacrifice or a woman’s duty to burn herself at her
husband’s funeral support the Court’s argument? Why or
why not? How is polygamy different from these practices?
4. How is this case different from Regina v. Wagstaff?
5. Do you agree that “it is within the legitimate scope of
the power of every civil government to determine whether
polygamy or monogamy shall be the law of social life under
its dominion” (98 U.S. at 166)? What are other aspects of
“social life” that the Court can decide?

After-Reading Critical Connections for Reynolds v. United

States

1. What is the state’s interest in forbidding the practice of

polygamy? Do you agree?
2. Using the Court’s reasoning, what other religious
practices could be crimes? Could the law against procuring
alcohol for a minor be used to charge a person who gives
 communion to a minor?
3. Reynolds was decided 1878. How has society’s
definition of “marriage” changed? How has society’s
definition of “religion” changed? In Wisconsin v. Yoder
(1972), the Court ruled that a law that “unduly burdens the
practice of religion” without a compelling interest would be
unconstitutional (406 U.S. at 220). Is there a “compelling
interest” to continue to criminalize polygamous marriages?
Does this law unduly burden the practice of religion?

Case #2: West Virginia State Board of Education

v. Barnette,
319 U.S. 624 (1943)

Facts of the Case

The West Virginia Board of Education required that all

teachers and students in public schools recite the Pledge of
Allegiance. The respondent, a Jehovah’s Witness, asked for an
exception to the rule because the pledge was against his
religious beliefs. However, he was denied that exception and
was punished.

Question

Did the compulsory flag-salute by public school children

violate the First Amendment?

Conclusion

Yes. The Court found that a right not to speak is equally

protected; therefore, requiring students to say the pledge was a
violation of the students’ First Amendment rights.

Before-Reading Activities for West Virginia v. Barnette

1. Review the freedom of speech clause of the First
Amendment of the U.S. Constitution. Does freedom of
speech also include freedom from speech—or the ability to
choose not to speak?
2. Your school may have a policy requiring reciting the
Pledge of Allegiance every day. Discuss reasons as to why
someone may choose to not follow this policy. What are the
consequences for not saying the pledge?
3. This case was decided in the midst of World War II.
Discuss the concepts of nationalism, patriotism, and the
overall sentiment held by the United States during World
War II.
4. Review the facets of the perspectives and beliefs of
Jehovah’s Witnesses. A good resource can be found on
www.pbs.org using the search terms “Independent Lens
Knocking.”

Text-Based Questions for West Virginia v. Barnette

1. Review the text of the Pledge of Allegiance. What is the

intent of the pledge? Why did the legislature feel it was
important for students to recite the pledge each day?
2. What was the conflict in this case? Which
individuals/groups were battling each other?
3. Why are schools used as a means of teaching patriotic
loyalty?
4. The behavior of the religious group in this case was
entirely peaceful and did not interfere with anyone else’s
liberties or rights. Should that type of protest be treated
differently than a violent one? Why or why not?
5. Should authorities be allowed to force you to say
something that you do not believe? Why or why not?
6. Why did some see a refusal to say the Pledge of
Allegiance as a threat to national security?

After-Reading Critical Connections for West Virginia v.

Barnette
1. Should the Pledge of Allegiance only be recited in
English? Consider the situation at Rocky High in Colorado
where students translated the pledge into their native
languages. Should this be allowed? Watch a short YouTube
report, “Colorado School’s Arabic Pledge of Allegiance Leads
to Hate Threats.”
2. Students in today’s schools still face controversy when
they refuse to salute the flag. In 2013, a Florida teacher told
a student to “move out of the country” if his religion
prevented saluting the flag. How should school
administrators handle this type of situation?
3. The West Virginia v. Barnette case was actually the third
in a series of cases involving Jehovah’s Witnesses and the
flag salute. The first two cases held against the religious
group and caused a massive outbreak of violence against
Witnesses. In Barnette, the Court changed course and
essentially admitted that they got the first two cases wrong.
How does the evolution of time change or influence core
values and beliefs? An interesting law review article to add
to your reading list is a 2007 revisit with members of the
West Virginia Board of Education. To locate this text, do an
Internet search for St. John’s Law Review, volume 81, issue
4.

Case #3: Wisconsin v. Yoder, 406 U.S. 205 (1972)

Facts of the Case

Members of the Conservative Amish Mennonite Church were

prosecuted under a Wisconsin law that required all children to
attend school until age 16. The parents refused to send their
children to school after the eighth grade because attendance
violated their religious beliefs. Therefore, the law violated the
free exercise clause.

Question
 Did Wisconsin’s requirement that all parents send their
children to school until at least age 16 violate the First
Amendment by criminalizing the conduct of parents who refused
to send their children to school for religious reasons?

Conclusion

Yes, the Court held that forcing an individual to attend

school interfered with a religious belief. Since the religious belief
was an objective practice and the state could not show a great
benefit of two additional years in school, the Court found that
the interests of the parents’ religious practice outweighed the
state’s interest. In the majority opinion by Chief Justice Warren
E. Burger, the Court wrote that high school education’s values
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 in order to justify the law
(406 U.S. at 217).

Before-Reading Activities for Wisconsin v. Yoder

1. Review the free exercise clause of the First Amendment

to the U.S. Constitution. What does that clause provide?
How does that clause play out in our everyday lives?
2. History of the Amish people: Provide the students with
some background or have them do some research on the
Amish and their beliefs. A good place to start would be to go
to www.pbs.org and look for The American Experience
documentary “The Amish.” The documentary site has
additional web resources for your use.
3. Have a class discussion about how we should balance
the laws of the state against the personal rights and
freedoms of the individual. For example, our society places
a high priority on the right to have your body free from the
invasive touch of other people, yet since 9/11, all people
who fly are subject to screenings where items of clothing
 may have to be removed and your body may be patted
down. Why is this okay? Are there any people who should be
allowed to have an exemption from this type of screening?

Text-Based Questions for Wisconsin v. Yoder

1. Five different organizations filed amicus curiae briefs to

the Supreme Court about this case. An amicus curiae brief is
a written submission to the Court by a party that is not
directly involved in the case but believes that there is
important information that the Court should hear in order to
help the Court make its decision. What groups filed the
briefs? What do you suppose the amicus briefs may have
contributed to the discussion?
2. Why do you think the State of Wisconsin thinks that it is
important for children go to school until they are at least
16? Why would states want mandatory education?
3. Why does it matter that this religious sect is over 300
years old? The Supreme Court refers to this time and again
in its decision. What if the Amish religion had only been 15
years old? Should the age of your belief system make a
difference?
4. The Court states that one or two years in high school
(9th and 10th grade) can be balanced with the important
lessons that the Amish youth learn outside of school. Do you
agree with this? What important lessons have you learned
outside of school? Do you think we as a society put too
much emphasis on formal education?

After-Reading Critical Connections for Wisconsin v. Yoder

1. The Court refers to the State of Wisconsin acting as

parens patriae. What does that mean? How much right
should a state have to interfere with the decisions of
parents in raising their children? Should a state be allowed
to step in for issues such as what chores a young person
must do at home? Caring for younger siblings? Whether a
 young person receives vaccinations and medical care?
Where do you think the line is for involvement from the
state?
2. In this case, the Old Amish do not want their children
attending school past 16 in order to minimize the influence
of the outside world, but many Amish communities allow
their young people a time of greater freedom during
adolescence called Rumspringa. Does this conflict with the
fight that the Amish have about minimizing “worldly”
influences in the lives of their children? Do you think that if
the justices had known about this tradition it might have
changed the Court’s decision? A good resource for this
discussion can be found at www.npr.org and searching for
“Rumspringa: Amish Teens Venture into Modern Vices.”
3. States are allowed to determine their own ages for
compulsory education. Should every state be required to
have the same requirements for compulsory education?
Statistics for compulsory education by state can be found at
the National Center for Educational Statistics at
nces.ed.gov.

Teaching Note

The First Amendment Center website

(www.firstamendmentcenter.org) provides a nice summary
and background about the free exercise clause and other
First Amendment issues.
Options for studying case law in the literature classroom:

1. Teachers may provide summaries.

2. Students could read excerpts from the actual cases.
3. Students could be asked to read excerpts from a case
and find the Court’s holding, that is, what law can be
applied to future cases.
4. Students could be provided with these case
summaries and be provided with an additional case to
read and synthesize into their argument; for example, the
 recent decision in Burwell v. Hobby Lobby Stores speaks
to religious freedom.

LAW AND LITERATURE LESSON IN ACTION WITH

THE FEATURED LITERATURE SELECTION
ANTIGONE, BY SOPHOCLES
In Antigone, the main character’s religious tenets conflict with
her duty to obey the law, and she rebels against the rules of her
society. She defies Creon’s “law,” which forbids her to give her
brother a proper burial. Even though she may be put to death
for her act, Antigone chooses the gods’ law over human law.
Featured case law will be synthesized and applied to the
main themes in Antigone. This assessment requires students to
defend a personal value using their knowledge of the play and
the suggested case law. Students should read Antigone, taking
note of instances when both Antigone and Creon make
suppositions about core values and belief structures. The
application of the text, in conjunction with the suggested case
law, provides an interactive, dramatic, and engaging experience
for the students.

Overview

Pretend Antigone is set in today’s society, and she is

appealing the state’s (Creon’s) guilty verdict that she violated
the law forbidding her brother’s burial.
Student roles: attorneys representing Creon’s and
Antigone’s positions.
Audience: the judge.

Format

Appellate oral argument: an argument to a judge or panel of

judges of an appellate court that argues the legal reasons why
the attorney’s side should prevail.
Topic

Using the legal precedent set by the featured case law,

argue that the law forbidding Antigone to bury her brother
should be ruled constitutional (the state’s argument) or
unconstitutional (Antigone’s argument).
Teaching Note: Appellate oral arguments to an
appellate court will usually include (1) an introduction (how
the case got there); (2) a short statement of facts about what
happened, in this case, the story of Antigone; and (3) two to
three points arguing why the court should rule in your favor. It
is at this point that the students would incorporate the case
law to show how legal precedent supports their side.
Oral arguments rarely allow a lawyer to stand and give a
speech. Rather, the judge(s) are involved and interrupt with
questions. Depending on the level of the students, students
could present their argument as an uninterrupted speech, the
teacher could interrupt and ask questions, or a panel of
student judges could interrupt student attorneys with
questions.
Audio recordings of oral arguments and transcripts can be
found on the U.S. Supreme Court website.

Assessment Criteria

Teachers will want to consider the following criteria in order

to evaluate the students’ oral arguments:

1. An understanding of the plot of Antigone

2. Use of the legal precedent to support the argument
3. Organization and clarity of the argument
4. Style and delivery of the argument

Teaching Note—Adapting the Project to Fit Your

Classroom: Teachers could have students work in groups.
Some students could be judges, and some students could be
 lawyers. In addition, teachers could have students complete
the assessment as a written argument to the court rather
than as an oral presentation.

A NOTE FROM THE AUTHORS

Students participate in a world where standing up for one’s
beliefs is heralded as heroic and important. This lesson leans on
that call for civic involvement that engages students in change
movements. The lesson itself promotes higher-level thinking,
which brings out the competitive nature that seems to live
within each of our classes.
In addition, it explores the ideas of the individual versus the
group in a personal sense: students begin to question the
society in which they live—are school rules “right”? Am I doing
what is right for me or for the community as a whole? Most
importantly, do I have the courage to stand up for something
that I believe is wrong even though those around me might feel
differently? Who do I want to be in life?
Such questions challenge some of the closest personal
beliefs of students and often lead to some uncomfortable
realizations. Opening the door to conversations, allowing
multiple perspectives, and supporting dissention are important
teaching skills to engage during this type of lesson.
 Chapter 4
Whose Law Is It Anyway?
On what land? Was it tribal land? fee land? white property?
state? We can’t prosecute if we don’t know which laws
apply.

- The Round House

Two children seek revenge for the death of their father but
question whether their revenge should also be punished. A
young man is brought to trial but is given no clue as to the
charges or what he can do to respond to his arrest. Another
young man sees his former lover convicted of crimes and seeks
to understand how she could treat other people the way she did.
A frustrated British citizen takes issue with the way the king
is treating the citizens of the colonies. A man argues against
slavery. A tribal chief questions the decisions of the people
taking the tribe’s land. A delegate articulates rights so basic
that they should not even need to be laws. A young woman
defies the authorities that want to deny her desire for an
education.
Conflicts between laws—whether the laws are codified or
simply recognized as basic human rights—have long been a
subject for legal scholars. Which law is the accepted law? Which
law do we follow? Does state law trump federal law? How do
treaties impact us?
These issues are also reflected in literature as people
struggle with the acceptance of laws and rules in their lives. The
conflict can move from the internal, an individual questioning
the law, to the external, the individual taking the law into his or
her own hands. While social change is sometimes gained in the
process, the individual struggle often comes at a high price. The
U.S. Supreme Court has considered some situations where a
resolution between laws and rights needs to occur and can
provide some guidance in considering similar situations in
literature.
 WHOSE LAW IS IT ANYWAY? ESSENTIAL
QUESTIONS FOR
THIS THEME
1. What happens when laws collide? How do we know
which one to follow? How do we respond when there is no
clear choice between laws?
2. Are there fundamental rights that do not even need to
be codified, or formally written into a law, that we should
respect and honor?

SUGGESTED LITERATURE SELECTIONS

Fiction

Lord of the Flies, by William Golding: Golding’s classic

novel explores the lives of English schoolboys who find
themselves stranded on an island without adult supervision.
While initially they attempt to follow the laws and rules of
home, characters and relationships change as the societal
norms they brought with them break down, leading to death
and destruction.
What this text has to offer: Not only does this book offer
a look at the conflict occurring in individuals when no
authority is present to enforce societal norms and laws, but
it also allows the reader to consider what might/should
happen to the boys when they return home.
The Oresteia, by Aeschylus: This ancient Greek play
trilogy revolves around the return of Agamemnon after the
Trojan War. In his absence, his wife, Clytemnestra, has taken
Agamemnon’s cousin Aegisthus as her lover. Clytemnestra
murders Agamemnon, and their children Orestes and
Electra seek vengeance for their father’s murder. They kill
Clytemnestra and her new husband, Aegisthus. Orestes is
then tried for his mother’s murder but is acquitted through
the intervention of the goddess Athena.
What this text has to offer: The question arising from
the conflict of law in this setting is whether a crime can be
justified if it is done in response to an initial crime. Further,
the issue of who has the right to determine guilt arises, as
there is a conflict between the laws of the old gods and the
needs of a civilized society.
Mourning Becomes Electra, by Eugene O’Neill: This play
cycle is a modern retelling of The Oresteia, set in post–Civil
War New England.
What this text has to offer: This retelling of Aeschylus’s
original story has many of the same issues as The Oresteia,
with O’Neill making a central issue around the question of
who has the right to judge others.
The Trial, by Franz Kafka: This is the tale of the plight of
Josef K., his arrest on his 30th birthday for unspecified
crimes, and his ensuing trial, where nothing is revealed to
him. Josef K. seeks assistance with the process from family,
lawyers, and religious leaders, but no help ever comes his
way. On his 31st birthday, the men who arrested him a year
earlier come and execute him. (MA)
What this text has to offer: This bleak tale of legal
mystery and confusion offers the opportunity to consider
the relationship of the law to the individual and whether it is
possible for one to abide by or fight the law if one does not
know what the law is.
The Reader, by Bernhard Schlink: In 1958, teenaged
Michael Berg enters into a relationship with 36-year-old tram
conductor Hannah Schmitz. Hannah has Michael read to her
during their assignations. Hannah disappears, ending her
relationship with Michael abruptly, and he does not see her
again until 1964, when he is law school. Hannah is one of
the defendants in a case where former SS guards are being
tried for their crimes. During the trial and her subsequent
incarceration after her conviction, Michael learns Hannah’s
secret. (MA)
What this text has to offer: The book offers a look at
how and why people can follow rules and orders that fly in
the face of social conscience and whether there can ever be
 any understanding or acceptance of a person’s reasons for
doing things that most people would consider abhorrent.

Nonfiction

Original draft of the Declaration of Independence, by

Thomas Jefferson: Jefferson’s original text for the
Declaration of Independence, cataloging the offenses of the
king and how his actions are in direct conflict with
established laws and basic human rights.
What this text has to offer: Using this text allows
readers to examine Jefferson’s arguments, as well as look at
the differences between the first draft and the revised draft.
What was changed, and why was it necessary?
“No Compromise with Slavery,” by William Lloyd
Garrison: Garrison’s 1954 antislavery speech offers many
historical and religious reasons why slavery should not be
allowed in any state or in any form in the United States.
What this text has to offer: Readers can examine the
multiple sources of law that contradict and conflict with the
use of slavery and can consider the fundamental rights that
should be afforded to all people.
“Letter to President Pierce, 1855,” by Chief Seattle:
Chief Seattle’s oration points out the fundamental
differences between the laws and desires of the white man
as conquerors of Native Americans and of nature as
compared to the focus on the Native American life spent
living in harmony with nature.
What this text has to offer: This brief letter offers the
reader an opportunity to examine the conflicts between two
ways of life, as well as a masterful use of rhetorical devices.
“On the Universal Declaration of Human Rights,” by
Eleanor Roosevelt: Roosevelt’s 1948 speech before the
General Assembly of the United Nations articulates the
standard by which all countries should abide and which all
countries should strive to achieve.
What this text has to offer: This speech offers a
 consideration of basic human ideals that transcend law. Are
there ideas that are so universally “right” that we should not
need laws to recognize them?
I Am Malala: The Girl Who Stood Up for Education and
Was Shot by the Taliban, by Malala Yousafzai: Malala’s own
story of how she stood up for the fundamental right to
receive an education when the Taliban took control of her
small town in Pakistan. The book chronicles the threats that
her family received and the aftermath of the shot to the
head that Malala received as she returned home from
school.
What this text has to offer: A current and personal
examination of the fight that happens worldwide when
fundamental human rights come into conflict with
repressive political movements.

APPLICABLE CASE LAW

Case #1: Arizona v. United States, 567 U.S. ____

(2012)

Facts of the Case

The State of Arizona passed a law specifically addressing

immigration issues. Before the law could go into effect, the
Unites States sought to stop the enforcement of the law from
going into effect. Specifically, there were four provisions in the
law that the United States asserted were already covered by
federal law: (1) the creation of a crime in Arizona for being
unlawfully present in the United States, (2) the creation of crime
in Arizona for working when not authorized, (3) allowing law
enforcement officials to verify the citizenship status of anyone
who is lawfully detained, and (4) allowing the warrantless arrest
of anyone believed to be an alien removable from the United
States.

Question
 Did federal immigration law preclude the State of Arizona
from creating these laws?

Conclusion

The Court found that provisions 1, 2, and 4 were already

addressed by federal immigration and were precluded by
federal law, but provision number 3 could still go into effect, as
it assisted in the identification of illegal aliens when the
information was shared with the Immigrations and Customs
Enforcement Office.

Before-Reading Activities for Arizona v. United States

1. Have students look at the supremacy clause of the U.S.

Constitution, found in Article VI, Clause 2, establishing the
Constitution, federal statutes, and treaties as “the supreme
law of the land.” What does this mean for us as citizens?
How is this balanced with state laws?
2. Arizona v. United States is a case about illegal
immigration. Have students do research on immigration
issues in the United States, particularly in the state in which
they live. Why do people have such strong feelings about
immigration? Why do you think Arizona legislators felt that
it was necessary to enact these laws? Does Arizona have
more reason to adopt these laws than other states?

Text-Dependent Questions for Arizona v. United States

1. The Court makes distinctions about the illegal aliens

who come into the United States. What are these
distinctions, and why do you think the Court does this in the
opinion?
2. Part III of the opinion gives three reasons state laws
must “give way” to federal laws. What are they? Why is this
necessary?
3. Justice Kennedy finishes the opinion of the Court with
imagery of immigrants from around the world joining
together to become citizens. Why do you think he chooses
to end with this image in the discussion of illegal
immigration?

After-Reading Critical Connections for Arizona v. United

States

1. The Supreme Court of the United States has its own blog
page, where you can find in-depth discussions and
resources for a variety of cases. Students can look at this
blog page to read articles about the case, read amicus briefs
(briefs by parties interested in the outcome but not involved
in the lawsuit), read summaries about the orla arguments,
and more. Information about this specific case can be found
at the Supreme Court’s blog page at www.scotusblog.com
by searching for “Arizona v. United States.”
2. What are your reactions to the Arizona law? Do you
think that the provision that remained in effect is right? Why
or why not?

Case #2: Mississippi Band of Choctaw Indians v.

Holyfield,
490 U.S. 30 (1989)

Facts of the Case

The Indian Child Welfare Act of 1978 (ICWA) gave tribal

courts exclusive jurisdiction over the adoption of children
“domiciled” on reservations in order to prevent Indian children
from being taken away from their tribes through social services
or adoption. In this case, two unwed Choctaw parents who lived
on the reservation decided to give birth to their twin babies 200
miles away from the reservation because the mother did not
want her children adopted by Indians. The children were
adopted by non-Indian parents, the Holyfields. The Choctaw
band sought to have the adoption vacated.

Question

Did the birth mother’s choice to have the babies born away
from the reservation result in the twins not being “domiciled” on
the reservation and therefore void the applicability of the ICWA?

Conclusion

The Court found that the mother was still a resident of the
reservation, and even though she left for a short time in order to
give birth, this did not outweigh the rights of the Choctaw tribe
or negate the jurisdiction of the tribal courts over the adoption
of the children.

Before-Reading Activities for Mississippi Band of

Choctaw Indians v. Holyfield

1. Have students read about the historical background

regarding Indian adoption. The website for the National
Indian Child Welfare Association is a good resource.
2. Students may wish to look at population information for
Native American tribes in the United States as they consider
the information presented in the case. A detailed report
taken from the 2010 census can be found at
www.census.gov by searching for “American Indian
population.”

Text-Dependent Questions for Mississippi Band of

Choctaw Indians v. Holyfield

1. The Court spends a great deal of time considering the

concerns of the culture of the Native American tribes. Why
is this important? How should this be balanced with the
 need to promote child welfare?
2. The holding of this case is based on the definition of the
word domicile. How does the Court define this word? Do you
agree with the definition?
3. The Court states it important that since ICWA is a
federal law, it is up to federal courts to decide the meaning
of the language of the law. Why is this important? What
could happen if every state was allowed to determine the
definition of ambiguous language in ICWA?

After-Reading Critical Connections for Mississippi Band

of
Choctaw Indians v. Holyfield

1. Three years passed before this decision was made, and

the Supreme Court urged the tribal court to consider that
the children had lived with the Holyfields for three years.
What decision do you think the tribal court should have
made in regard to the children after the Supreme Court’s
decision?
2. Do you think it right that Native American parents living
on reservations do not have the same right to choose who
adopts their children as people not living on reservations?
Do we still need this law today in order to address historical
wrongs?

Case #3: Reid v. Covert, 354 U.S. 1 (1957)

Facts of the Case

While living on an English airbase, Clarice Covert was court-

martialed for the murder of her husband, a sergeant in the U.S.
Air Force, and was convicted. Mrs. Covert asserted that the
military conviction violated her rights under the Fifth and Sixth
Amendments and that she was entitled to a civilian trial.
Question

Do citizens who live abroad on U.S. military bases retain the

rights granted by the Constitution?

Conclusion

The Court determined that since Mrs. Covert was not a

member of the military, she did not have to be subject to Article
2 (11) of the U.S. Code of Military Justice and that the Bill of
Rights still applied to citizens residing abroad.

Before-Reading Activities for Reid v. Covert

1. Students should look at the provisions of the Fifth and

Sixth Amendments as they relate to a citizen’s right to trial.
2. One of the main issues that the defendant in this case
had was the vast difference between a court-martial and a
trial by jury. Students should take time to compare and
contrast the differences between these legal proceedings in
order to better understand why the defendant felt that her
case would have been better heard by a jury.

Text-Dependent Questions for Reid v. Covert

1. Mrs. Covert presented an insanity defense at her trial

but believed that the procedures held by the tribunal at the
court-martial did not allow her to present her defense
adequately. One of the most important distinctions between
the two proceedings is that there is no jury at a court-
martial. Why would this make a difference?
2. The Court notes that Article I, Section 8, Clause 14
empowers Congress to make and enforce the laws on
military bases overseas but also states that this clause
should not extend to family members of military personnel.
The Court then has a lengthy discussion of why it is
 important that regular citizens not be subject to military law.
Why is this historical discussion an important part of the
decision?
3. The Court states that military law is different than the
law that applies to the rest of U.S. citizens. What reasons
justify making military law different than civil law?

After-Reading Critical Connections for Reid v. Covert

1. Reid v. Covert has the distinction of being the only case

ever argued twice before the Supreme Court where the
Court overturned its initial decision. Students may wish to
look at the decision for the first case (Reid v. Covert, 351
U.S. 487) to see why the justices initially decided against
Mrs. Covert’s petition and compare it to this decision.
2. The oral reargument made by Mrs. Covert’s lawyer,
Colonel Wiener, has been said to be one of the finest
examples of legal persuasion in history. Students may listen
to the reargument at www.oyez.org.
3. Note that this is still a case in which U.S. law and
constitutional rights apply. How would this be different if
Mrs. Covert’s husband was not a military person but was a
citizen of the United Kingdom and she was an American
living in England?

LAW AND LITERATURE LESSON IN ACTION WITH

THE FEATURED LITERATURE SELECTION THE
ROUND HOUSE,
BY LOUISE ERDRICH
The Round House is set in 1988 on a North Dakota reservation.
Geraldine Coutts, wife of a tribal judge, is brutally raped but
refuses to reveal any details about the crime or her attacker.
Her teenage son, Joe, along with his best friends Cappy, Zack,
and Angus, sets out to discover what happened to his mother.
The boys discover that the crime took place on a piece of land
with questionable jurisdiction; it is not clear whether state,
federal, or tribal law would apply to the perpetrator. As a result,
the boys decide to take justice into their own hands.
The issue of which law—tribal, state, or federal—is
applicable is a central issue in The Round House. Knowing about
the differing jurisdictions is important as the readers explore
how and where the crime committed against Geraldine Coutts
should be addressed . . . if it can be addressed.
Before doing this assignment, students should have spent
some time exploring the differences between federal, state, and
tribal laws and how they differ. Before reading the book, have
students research the following terms as they relate to Native
Americans:

Sovereignty
Jurisdiction
Tribe
Nation
Blood quantum
Treaty

Students may also find it helpful to discuss the following

questions:

Which of these statements are true or false about

tribal jurisdiction and sovereignty?
_______ 1. Indian nations have no criminal jurisdiction
over non-Indians.
_______ 2. American Indians cannot vote in state and
local elections, only in tribal and federal elections.
_______ 3. American Indians pay the same taxes as all
other U.S. citizens.
_______ 4. Native Americans are not subject to the
hunting and fishing laws of the state in which they reside
while on tribal land in that state.
_______ 5. There are currently no legal protections that
prevent American Indian sacred places from being
desecrated or destroyed.
 A good resource for answers to these questions and
information regarding tribal law is the Tribal Court
Clearinghouse, found at www.tribal-institute.org.

Application of the Jurisdiction of Sexual Assault

Laws to The Round House

This activity should be done after reading Chapter 8 of the

novel.
Before writing, students will watch a PBS video about new
laws being enacted in 2014 for Native American women—this
video can be found on www.pbs.org by searching “newshour
domestic violence Indian reservations.”
After watching the video, students will write a response
considering the following:

Why did the woman in the video finally leave her

situation?
Why would Native American reservations have courts
that only allow them to try their own tribal community and
not regular U.S. citizens? What are the risks and benefits to
this?
On March 7, 2013, Congress reauthorized the Violence
Against Women Act (VAWA). The reauthorization included a
new provision granting tribal courts jurisdiction over a
limited number of domestic and dating violence crimes
committed by non-Indians on reservations. Specifically, it
only covers domestic and dating violence, but it does not
include assault by a stranger or rape.
How does this law support the tribal community’s ability
to serve justice to assault victims? In what ways is it
limiting? Why do you think lawmakers did not include
assault by a stranger or rape? Do you think it should be
included now? Why or why not?
How does information relate to the events of the book?
What impact would these laws have on Joe’s mother and
what happened to her?
 A NOTE FROM THE AUTHORS
The conflict of laws is a complex yet very relevant topic to
invest in within the English language arts (ELA) classroom.
Rarely are there clear answers in life, particularly to questions
involving humanity, morality, or ethical principles. Thus,
students must develop the ability to view issues from multiple
vantage points.
Much like characters in stories have differing opinions, so
too does the resolution of complex problems under the law.
Students can easily understand that the rules at their homes are
different than the rules within the school, and those differ from
the rules of being out and about in the neighborhood. The layers
present in complex issues are real and ripe to be studied.
Further, if the contents of this chapter seem similar to those
in Chapter 3, it is because in some ways they are. It is a good
reminder to ELA teachers that there is not just one valid reading
of a text. Texts can be examined from more than one
perspective or using more than one theme.
A number of the texts from Chapter 3 would fit into an
examination of a conflict of laws, just as a number of the texts
for this chapter could be examined when looking at standing up
for one’s rights, and we encourage you to explore how other
texts in this book can be seen using other themes that we have
included.
 Chapter 5
But That’s Not Fair!
There is one way in this country in which all men are
created equal—there is one human institution that makes a
pauper the equal of a Rockefeller, the stupid man the equal
of an Einstein and the ignorant man the equal of a college
president. That institution, gentlemen, is a court . . . and in
our courts all men are created equal.

- To Kill a Mockingbird
A juror is determined to convince eleven other jurors to
examine the evidence closer and look past their predetermined
ideas. An African American man’s poverty predestines him to
committing crimes. Two high schoolers are arrested for shooting
a man, and the inequality in the judicial system hits them. A
poet reflects on being sent to the kitchen to eat while
maintaining hope for the future. A young Native American re-
creates experiences from each year of his “education.”
The founding fathers explain their “declaration of
independence” from Britain. A former slave articulates why he is
not celebrating the Fourth of July. An author reveals her
awareness of race in her life. The U.S. president traces the
understanding of his identity.
These stories all examine the difference between America’s
ideal and reality: how the ideal of achieving fairness and equity
is difficult to make a reality. But the examination of fairness and
equity in these stories also considers the role of hope. How can
a society continue to keep working toward the ideal? What
events in our nation’s history have helped work toward that
ideal? What events have set our nation back? Are equality and
fairness the same thing?
The Fourteenth Amendment’s equal protection clause
prohibits states from denying any person in their jurisdiction the
equal protection of the laws. To ensure this fairness and equity,
one pillar of the law is the right to a jury trial and that jury must
be an impartial one. But what does an “impartial” jury look like?
One issue that has arisen in attempting to achieve this
equity is the question of when an attorney is allowed to use a
peremptory challenge. A peremptory challenge allows an
attorney to exclude a potential juror without stating a reason.
But does this ability to exclude certain people from serving
hinder or help in the achievement of fairness and equity? The
selected case law looks at restrictions that the court has placed
on the use of peremptory challenges.

BUT THAT’S NOT FAIR! ESSENTIAL QUESTIONS FOR

THIS THEME
1. What gets in the way of people’s ability to treat others
with fairness and equity?
2. Why is fairness and equity an important ideal in society?

SUGGESTED LITERATURE SELECTIONS

Fiction

12 Angry Men, directed by Sidney Lumet: This film

shows the deliberations of a jury in a murder trial as one
man convinces the other 11 men to vote “not guilty.”
What this text has to offer: The film offers an
opportunity to discuss how jurors bring their prejudices or
experiences to the courtroom. How do those things prevent
a juror from deciding a case with fairness and equity? Is
fairness and equity possible from a juror? How does a group
help achieve fairness; how does it hinder it?
Native Son, by Richard Wright: The story of an African
American man in the 1930s who commits several crimes,
inadvertently stemming from being in situations that, if
racial prejudice were not present in society, would not give
rise to the events that caused the crimes. (MA)
What this text has to offer: How does the environment
determine how a person will behave? Are there factors
 beyond one’s control that it make it an injustice to punish a
crime? The text also offers the opportunity to discuss the
idea of how the “justice” system may not achieve justice,
equity, or fairness.
Black and White, by Paul Volponi: This young adult novel
deals with two high school basketball players who are best
friends and decide to rob a bus driver. While both are
complicit in the crime, only Marcus, the black student, faces
charges for the crime.
What this text has to offer: The novel, told through the
voices of both boys, shows how the criminal justice system
can have very different results based on the color of one’s
skin. How does this inequity happen? Can it be changed?
“I, Too,” by Langston Hughes: This poem expresses the
speaker’s exclusion by whites when he is “sent to the
kitchen to eat” but focuses on hope for the future.
What this text has to offer: Students can examine the
idea that America’s opportunities may be limited for
different people. How could this poem still be applicable to
America today? How can institutionalized racism be broken
down?
“Indian Education,” by Sherman Alexie, from The Lone
Ranger and Tonto Fistfight in Heaven: This short story re-
creates a single event from each grade of the narrator’s
schooling. The events all re-create the “education” that
Victor (the narrator) received that did not come from the
textbooks.
What this text has to offer: Discrimination is central to
the episodes that make up Victor’s education. As education
is often viewed as an equalizer in our society, the text offers
the opportunity to discuss the inequity in education and how
privilege affects one’s ability to make use of opportunities.
How does Victor deal with the lack of fairness in his
education?

Nonfiction
 Declaration of Independence: This primary document
offers students the opportunity to think about equality as
defined by the founding fathers. In the context of this
document, what does equality mean?
What this text has to offer: This text provides a good
opportunity to think about the history of America and the
ideals upon which America was founded. What were the
guiding principles? Does today’s America fulfill the promise
of the first paragraph of the declaration? Is America
currently committing any of the charges that are listed
against the king?
“What to the Slave Is the 4th of July?” by Frederick
Douglass: This speech reminds the audience that although
the Fourth of July might be a day of celebration for many
Americans, black Americans have yet to reach the promise
of equality. It sets up Douglass’s argument for the abolition
of slavery by discussing the history of the nation in gaining
independence from England and how the principles in the
Declaration of Independence are not extended to all
Americans.
What this text has to offer: This speech gives students
an opportunity to discuss the focus questions: What gets in
the way of people’s ability to treat others with fairness and
equity? Why is fairness and equity an important ideal in
society? In addition, Douglass points out the inequality of
the law. Although these laws would now be found
unconstitutional, how are laws still discriminatory?
“How It Feels to Be Colored Me,” by Zora Neale Hurston:
This essay examines how the author came to understand
her race. She reflects on both the moments when she feels
her race and those times when she has no race.
What this text has to offer: Students can think about
how we define race in our society. How does Hurston
understand race?
Dreams from My Father: A Story of Race and
Inheritance, by Barack Obama: This memoir recounts
Obama’s examination of his heritage.
 What this text has to offer: This text offers an
opportunity to discuss the idea of fairness in America
through the story of an eventual president’s journey
navigating being black in America.

APPLICABLE CASE LAW

Case #1: Batson v. Kentucky, 476 U.S. 79 (1986)

Facts of the Case

A black man was on trial for burglary and receipt of stolen

goods. The state used its peremptory challenges to strike all
four black potential jurors, leaving an all-white jury, which
convicted the defendant.

Question

Was it a violation of the defendant’s Sixth Amendment right

to a fair jury trial and Fourteenth Amendment right to equal
protection under the law when the state used four peremptory
strikes to exclude black jurors?

Conclusion

Yes, the state’s action violated the defendant’s Sixth and

Fourteenth Amendment rights because the state did not provide
a neutral reason. The Court stated, “The harm from
discriminatory jury selection extends beyond that inflicted on
the defendant and the excluded juror to touch the entire
community. Selection procedures that purposefully exclude
black persons from juries undermine public confidence in the
fairness of our system of justice” (476 U.S. at 87).

Before-Reading Activities for Batson v. Kentucky

1. Examine the text of the Sixth Amendment. Discuss what
the right to a fair trial means. What must a fair trial include?
2. Examine the Fourteenth Amendment. What is the equal
protection clause? Discuss the three levels of scrutiny of
equal protection. Are there circumstances in which the
equal protection clause may disadvantage a class of people
that it is designed to protect? For a lesson on the equal
protection clause created by the American Bar Association,
go to the website at www.americanbar.org.

Text-Dependent Questions for Batson v. Kentucky

1. Why is not undermining the “public confidence in the

fairness of our justice system” an important goal for the
Court?
2. According to the Court, what should be considered in
the selection of a juror? What should not be considered? Are
these valid considerations? Why or why not? Are there other
things that attorneys should be able to consider when
selecting a jury? Are there things that an attorney should
not be able to consider when selecting a jury?
3. The Court citing Strauder v. West Virginia, states, “A
person’s race simply is unrelated to his fitness as a juror”
(100 U.S. at 308, Frankfurter, J., dissenting). Does a person’s
race affect his or her role as a juror?

After-Reading Critical Connections for Batson v.

Kentucky

1. What other factors can and/or should an attorney be

able to consider in his or her decision to use a peremptory
challenge?
2. Think about an exclusion from a jury based on religion.
For further reading, see the USA Today article “Boston
Bombing Jury Excludes Some Catholics,” by Jeffrey
MacDonald (January 25, 2015). Think about an exclusion
from a jury based on sexual orientation. For further reading,
 see the New York Times article, “Sexual Orientation Is No
Basis for Jury Exclusion, a Federal Appeals Court Rules,” by
Adam Liptak (January 21, 2014).
3. The Court states, “In Strauder, the Court explained that
the central concern of the recently ratified Fourteenth
Amendment was to put an end to governmental
discrimination on account of race”(100 U.S. at 306–307).
What other factors play a role in whether a jury is a cross-
section of the community? Has the Fourteenth Amendment
achieved its goal as interpreted in Strauder?
4. Does the race of the defendant play a role in jury
selection? See the New York Times article “Is the Defendant
White or Not?” by Gary Matter (January 23, 2015).

Case #2: J.E.B. v. Alabama ex rel. T.B., 511 U.S.

127 (1994)

Facts of the Case

Alabama sued J. E. B. to establish paternity and award child

support on behalf of T. B., the mother of a minor child. The state
used most of its peremptory challenges to exclude male jurors,
and an all-female jury found J. E. B. to be the father. The Court
ordered him to pay child support.

Question

Was the exclusion of jurors solely based on their gender a

violation of the equal protection clause of the Fourteenth
Amendment?

Conclusion

Gender-based peremptory challenges are unconstitutional.

Before-Reading Activities for J.E.B. v. Alabama ex rel. T.B.

1. The Court concludes, “When persons are excluded from
participation in our democratic processes solely because of
race or gender, this promise of equality dims, and the
integrity of our judicial system is jeopardized” (511 U.S. at
146). Respond to this statement.
2. Discuss the definition of “equality.” What does equality
look like in our judicial system?
3. A person has the right to an impartial jury, but he or she
does not have a right to a “jury of one’s peers.” How do
these two concepts differ? How are they the same? Read
and discuss the New York Times article “Idea of Jury of Peers
Is Questioned: Must a Jury Represent the Population?” by
David Margolick (February 17, 1992).

Text-Dependent Questions for J.E.B. v. Alabama ex rel.

T.B.

1. The Court discusses why women historically have been

excluded from jury service. What is the historical
justification for women’s exclusion? What are the
stereotypes assumed in this reasoning?
2. What is the respondent’s reasoning that gender-based
peremptory challenges are different than race-based ones?
How does the Court respond to that reasoning? Is it
important to draw an analogy with other discrimination in
the country’s history?
3. According to the Court, who is harmed by discrimination
in the jury selection, and how are these different parties
harmed?

After-Reading Critical Connections for J.E.B. v. Alabama

ex rel. T.B.

1. The Court in J.E.B. relies on the reasoning in Batson, but

are these two cases analogous? Is excluding a juror based
on race the same as excluding one based on gender? Who
was the Court protecting by finding gender-based
 peremptory challenges in J.E.B. unconstitutional? For a more
in-depth look, see Roberta K. Flowers’s law review article
“Does It Cost Too Much? A ‘Difference’ Look at J.E.B. v.
Alabama,” Fordham Law Review 64, no. 2(1995): 491–534.
Available at http://ir.lawnet.fordham.edu.
2. The Court assumes that a diverse jury is more likely to
reach the “right” decision. Is that a valid assumption to
make? Why or why not?

Case #3: Powers v. Ohio, 499 U.S. 400 (1991)

Facts of the Case

The defendant, Powers, a white man, was on trial for

aggravated murder and other related offenses. During jury
selection, the state used its peremptory challenges to remove
seven black potential jurors. The defendant objected based on
Batson, but the objections were overruled. The defendant was
convicted.

Question

Based on the equal protection clause, may a white

defendant object to the prosecution’s peremptory challenges of
black prospective jurors?

Conclusion

Under the equal protection clause, a criminal defendant

may object to race-based exclusions of jurors through
peremptory challenges whether or not the defendant and the
excluded jurors share the same race.

Before-Reading Activities for Powers v. Ohio

1. Who is the equal protection clause intended to protect?

2. Does fairness always mean treating people exactly the
same? Why or why not?
3. A student with a learning disability is allowed more time
on the ACT or another college admissions test. Is this fair?
Why or why not?

Text-Dependent Questions for Powers v. Ohio

1. How is this case different than Batson? Does the Court

think this difference is significant? What is the Court’s
reasoning that Batson applies?
2. Whose rights does the Court seem to be most
concerned about protecting? Why is this an important factor
in the decision?
3. The Court states, “Racial classifications do not become
legitimate on the assumption that all persons suffer them in
equal degree” (499 U.S. at 410). What does the Court
mean? Are there any circumstances in which racial
classifications would become legitimate based on this
reasoning?
4. According to the Court, what is the purpose of the jury
system? What is the “real injury” that the Court concludes
the defendant suffers when potential jurors are excluded on
account of race?

After-Reading Critical Connections for Powers v. Ohio

1. The dissent states, “It was not suggested in Strauder,

and I am sure it was quite unthinkable, that a white
defendant could have had his conviction reversed on the
basis of the same statute. The statute did not exclude
members of his race, and thus did not deprive him of the
equal protection of the laws” (499 U.S. at 417). Look at the
reasoning in Batson. Could the Court’s reasoning be applied
to the facts in this case?
2. Could the Court’s reasoning in Powers apply if a white
defendant claimed a violation of the equal protection clause
 because peremptory challenges were being used on white
jurors due to race?

LAW AND LITERATURE LESSON IN ACTION WITH

THE FEATURED LITERATURE SELECTION TO KILL A
MOCKINGBIRD,
BY HARPER LEE
To Kill a Mockingbird takes place in the early 1930s in Maycomb,
Alabama. The narrator, Scout Finch, tells the story of a three-
year span—one of the major events being when her widowed
father is appointed to represent Tom Robinson, a black man
accused of raping a white woman.
Teaching Note: In order to prepare students to complete
this activity, teachers may want to have students keep a
character chart as they read.

The jury in Tom Robinson’s case is made up of all white

males, as that was the law of Alabama in 1935. But even Jem,
Scout’s brother, understands the injustice of this:

Jem was scratching his head. Suddenly his eyes widened.

“Atticus,” he said, “why don’t people like us and Miss Maudie
ever sit on juries? You never see anybody from Maycomb on
a jury—they all come from out in the woods.” [And Atticus
realizes that] “If you had been on that jury, son, and eleven
other boys like you, Tom would be a free man,” said Atticus.
“So far, nothing in your life has interfered with your
reasoning process.” (296)

Pretend “anybody from Maycomb” could serve on Tom

Robinson’s jury. Assuming the role of a character from the novel,
fill out the jury questionnaire. Use quotations from the text to
support each of the character’s answers.
The following characters could be used: Jem Finch, Scout
Finch, Boo Radley, Alexandra Hancock, Maudie Atkinson, Dill
Harris, Calpurnia, Rachel Haverford, Stephanie Crawford, Mrs.
Henry Lafayette Dubose, Grace Merriweather, Dolphus
Raymond, Walter Cunningham Sr. (see Figure 5.1).

Jury Questionnaire

Extending the Learning: Choosing a Jury

To extend the activity further, teachers could have students

conduct a voir dire and choose a jury. Voir dire is the process by
which the judge and attorneys question the potential jurors to
determine whether they would be able to deal with the issues
fairly. It is a French term that means “to speak the truth.”
Have students work on the questionnaire in groups of three.
Now, in those same groups, have students conduct a voir dire of
the character to the class. One student can play the role of the
state’s attorney, one student can play the role of the defense
attorney, and one student can play the role of the
character/potential juror. Each attorney should develop four to
five questions to ask the potential juror.
Teachers divide the remaining class into two sides: the state
and the defense. The “acting attorney” for each side consults
with the group of attorneys in order to determine whether they
would want this potential juror to serve. If not, consider the case
law in this chapter. Could the prosecution or the state use a
peremptory strike against this person without violating the
rulings of the U.S. Supreme Court?
Teaching Note: This activity could be done with any
novel. In addition, a teacher could use characters from other
literature that the students have read throughout the year.

A Further Extension

Students can act out the case of Tom Robinson in front of

the selected jury. Those students not selected after the voir dire
can play the attorneys, defendant, witnesses, and judge.

A NOTE FROM THE AUTHORS

Fairness strikes a chord with most students—that balance of
authority and autonomy that many students struggle with as
they move into adulthood. Students question why older
students get privileges that younger students do not or why one
student’s punishment is different than another student’s.
Studying fairness by incorporating legal texts within an
English language arts (ELA) setting allows for some hard
questions to be posed: What is fair? How do we know? When is
fairness either unrealistic or unnecessary? And is fair always
equal? This thematic connection pushes students to a deeper
understanding of the characters because they both have to rely
on direct evidence from the text and make inferences based on
that evidence.
One unique feature about the theme of fairness is that it
links to many nonfiction as well as fiction selections so it is easy
to bridge some technical, real-life writings alongside fiction
selections. The sheer expanse of literature available provides a
wide menu of literary options for this thematic unit.
 Chapter 6
It’s All in Your Head
I am glad my case is not serious! But these nervous troubles
are dreadfully depressing. John does not know how much I
really suffer. He knows there is no reason to suffer, and that
satisfies him.

- “The Yellow Wallpaper”

A developmentally disabled man has a fascination with soft
and pretty things that gets him in trouble. A mental patient
enters into a war for control with the strict authority figure at his
hospital. A young woman cannot conquer her suicidal
tendencies and is institutionalized. A wife and mother becomes
dissatisfied with her life and behaves in ways that shock society.
A family is emotionally rocked by the death of its oldest son. A
murder’s guilty conscience causes him to hear the heart of his
victim.
An artist examines the connection between her depression
and her talent. A woman who has been institutionalized
wonders if it is because she is really sick or because she does
not conform to what society wants. The victim of a psychotic
criminal wonders if he would have been attacked had there
been better mental health care.
When people think of mental health and the law, generally
competency to stand trial is the issue that first comes to mind.
However, law and psychology are two disciplines that often
have to work hand in hand, and in the last 30 years several law
schools have created dual law/psych programs to address the
growing issues and concerns that come when dealing with
mental health issues.
Many modern and postmodern novels deal with characters
who have psychological issues. Taking a deeper look at these
characters to see how the law relates to the individual rights of
those who are mentally ill or developmentally disabled can
breathe new life and interest into familiar texts.
 IT’S ALL IN YOUR HEAD: ESSENTIAL QUESTIONS
FOR THIS THEME
1. What legal rights do mentally ill or mentally impaired
people have?
2. How have historical treatments for mental issues had an
impact on the affected parties and their individual rights?

SUGGESTED LITERATURE SELECTIONS

Fiction

Of Mice and Men, by John Steinbeck: During the Great

Depression, temporary laborer George and his mentally
challenged friend, Lennie, travel the country looking for
work. Lennie does not understand his own strength or how
to read social cues given by others, often getting him into
trouble. George tries to protect Lennie, but eventually they
find themselves in a situation where difficult choices must
be made.
What this text has to offer: This book provides a
historical look at how developmentally disabled people have
been treated and allows the reader to question whether
things have changed much today.
One Flew Over the Cuckoo’s Nest, by Ken Kesey: Newly
transferred to an Oregon psychiatric institution, Randall
Patrick McMurphy disrupts the status quo of the hospital and
enlists the help of other patients as he enters into a war of
control with the supervisor, Nurse Ratched. (MA)
What this text has to offer: The battle between
McMurphy and Nurse Ratched calls into question and brings
light to the mental health practices and treatments of the
1950s, as well as concepts of conformity and American
institutions.
The Bell Jar, by Sylvia Plath: Esther Greenwood is a 19-
year-old college student doing summer work in New York
when she begins to suffer from bouts of emotional
numbness. Struggling with decisions about what she wants
from her life and suffering from worsening depression, she
attempts suicide and is institutionalized. (MA)
What this text has to offer: A look into mental health
treatment from a female perspective, as well as a look at
the expectations placed on young women in the 1950s.
Although Esther gets out of the hospital, readers may
question her continued stability.
The Awakening, by Kate Chopin: Edna Pontellier,
married with two children, falls in love with Robert, a single
man who was her companion at the family’s summer
community. As her feelings grow, Robert leaves, but Edna
becomes increasingly dissatisfied with her life. Edna’s
doting husband encourages her to see a doctor, and she
attempts to make changes in order to find some satisfaction
in her life before she realizes that she is ultimately trapped
by societal norms and chooses to die.
What this text has to offer: This novel provides a good
opportunity for discussion about what constitutes mental
illness at all. Is Edna really sick? Are her final actions her
only choice? Can suicide ever be considered logical?
Ordinary People, by Judith Guest: After his older brother
dies in a boating accident, high school student Conrad
Jarrett attempts suicide after sinking into a deep depression.
The novel examines Conrad’s relationship with his
psychiatrist and the effect that an unexpected death can
have on a once-solid family.
What this text has to offer: This novel provides a candid
examination of the effects of loss on the individual members
of a family and how grief can manifest itself in both positive
and destructive ways.
“The Tell-Tale Heart,” by Edgar Allen Poe: The narrator
murders the old man in his care and believes that the still-
beating heart of the hidden body will cause the police to
discover the crime.
What this text has to offer: This classic short story offers
the reader a glimpse into the madness and conscience of a
 murderer.

Nonfiction

Marbles: Mania, Depression, Michelangelo and Me, by

Ellen Fortney: Fortney’s autobiographical graphic novel
explores her relationship between her creativity as an artist
and her diagnosis with a bipolar disorder. Would she have
her talent without her mental disease, and can she find a
way to balance her moods without impacting her art? (MA)
What this text has to offer: Fortney’s candid novel
explores her own journey with psychiatry, medication, and
other ways to help her control her bipolar disorder. She also
examines other creative people throughout history and their
reported mental illnesses and depressions.
Girl, Interrupted, by Susanna Kaysen: Kaysen’s 1993
memoir about her own experiences as a young woman in a
mental hospital in the 1960s after she is diagnosed with
borderline personality disorder. She recounts her
experiences in the hospital and her relationship with the
other patients and mental health professionals. (MA)
What this text has to offer: Kaysen’s book, like One Flew
Over the Cuckoo’s Nest, causes the reader to question what
is “normal” or not, and whether people were given
psychiatric treatment because they did not follow societal
norms.
“One Violent Crime,” by Bruce Shapiro: Shapiro’s essay
recounts what happened when a mentally ill man attacked
him in a coffee shop. Not only does it focus on his own injury
and the injuries of others, but he also wonders whether this
attack could have prevented if his assailant had been given
the care he needed.
What this text has to offer: This essay will allow readers
to consider if there are enough treatment options for
mentally ill people. What is being done to help Americans
with mental illness since the deinstitutionalization
movement of the 1970s?
 APPLICABLE CASE LAW

Case #1: Ford v. Wainwright, 477 U.S. 399 (1986)

Facts of the Case

In 1974, Alvin Bernard Ford was sentenced to death in

Florida for first-degree murder. There was no issue of his sanity
at trial. However, while awaiting execution, Ford’s mental health
deteriorated, and he was evaluated and found to be psychotic;
however, the governor signed Ford’s execution warrant. His
attorneys appealed his execution based on his competency, but
the federal district court denied hearing the case. Ford’s
attorneys appealed to the U.S. Supreme Court.

Questions

1. Do the Eighth and Fourteenth Amendments prohibit the

execution of insane people?
2. Even though a person has been convicted, is the person
still entitled to a hearing about their sanity postconviction?

Conclusion

Yes. The Court found that executing the insane was “savage
and inhumane” and that the lower court should have provided
Ford a hearing to determine if he was actually insane or not.

Before-Reading Activities for Ford v. Wainwright

1. Students can examine the provisions of the Eighth and

Fourteenth Amendments. Why would it be cruel and unusual
to put someone who is insane to death?
2. Refer students to the American Civil Liberties Union
website for good resources addressing insanity and the
death penalty.
Text-Dependent Questions for Ford v. Wainwright

1. What is the historical perspective of executing a

prisoner who has lost his or her sanity?
2. What do you think of the statement that executing
people who are insane has a “lesser value” than executing
someone who is sane?
3. What three elements of the Florida procedure did the
Court say were unconstitutional?

After-Reading Critical Connections for Ford v.

Wainwright

1. Are courts the best place for determining the sanity of a

person? Why or why not? Who should be making these
decisions? What should courts do when there is a “battle of
experts,” that is, when two professionals testify with
opposing viewpoints?
2. For further consideration, have students read the article
“Executing the Mentally Ill: When Is Someone Sane Enough
to Die?” by Michael Mello as published in Criminal Justice
22, no. 3 (Fall 2007). (This article can be found on the
American Bar Association website.)

Case #2: Riggins v. Nevada, 504 U.S. 127 (1992)

Facts of the Case

David Riggins was arrested for murder. After his arrest, while
awaiting trial, he complained that he was hearing voices and
could not sleep at night. A psychiatrist prescribed a high dosage
of the antipsychotic drug Mellaril. When it came time for him to
stand trial, Riggins presented an insanity defense and asked to
be taken off of the drug, which was denied. Riggins was found
guilty of the murder.
Question

Did the forced administration of the Mellaril violate Riggins’s

constitutional rights under the Sixth and Fourteenth
Amendments?

Conclusion

The Court found that it was wrong for the defendant to be

administered antipsychotic drugs during the trial over his
objection without a determination that there were no other
alternatives, that the medication was medically appropriate, and
that it was necessary for the defendant’s safety or the safety of
others.

Before-Reading Activities for Riggins v. Nevada

1. The American Bar Association website provides some

good background education on the history of forcibly
medicating incompetent prisoners. Go to the website at
www.americanbar.org and search for “forced medication
incompetent,” and it will lead you to the article “Forced
Medication of Legally Incompetent Prisoners: A Primer,” by
Kathy Swedlow.
2. You can learn what is being done for the incarcerated
who are mentally ill by going to the Treatment Advocacy
Center’s research website at tacreports.org. This site offers
state-by-state informational and statistical resources about
mentally ill persons in prisons and jails.

Text-Dependent Questions for Riggins v. Nevada

1. Why do you think it was important for the petitioner

Riggins to have the jury see him unmedicated at his trial?
2. When does the Court say that it is okay to medicate
people if it is involuntary? Does this apply to Riggins?
3. In Justice Kennedy’s concurrence, what two reasons
does he give for the argument that medicating people
involuntarily will interfere with giving a defendant a fair
trial? Do you agree or disagree with these reasons?
4. In Part II (A) of their dissent, why do Justice Thomas and
Justice Scalia say that Riggins has no right to complain
about being given medication? Do you agree or disagree
with them?

After-Reading Critical Connections for Riggins v. Nevada

1. This decision was obviously made after the time when

antipsychotic and other medication assisting mentally ill
patients was the norm in the United States. How do you
think defendants would have been treated before the
common use of medication? The PBS show The American
Experience has an episode that deals with mental health as
it affected John Nash (the subject of the film A Beautiful
Mind) called “A Brilliant Madness.” One of the resources is a
time line regarding mental health issues and their treatment
since 400 B.C., which students may find helpful.
2. The Treatment Advocacy Center
(www.treatmentadvocacycenter.org) has some interesting
information about what mental health professionals can do
when someone refuses treatment. If you do a search on the
site for “refusing treatment,” it will take students to these
resources.
3. The Supreme Court case Sell v. United States, 539 U.S.
166 (2003), revisits the decision made in Riggins and further
elaborates on the earlier decision. Students can examine
both cases to see how the precedent made in Riggins was
used in Sell.

Case #3: Indiana v. Edwards, 554 U.S. 164 (2008)

Facts of the Case

 Ahmad Edwards was arrested after trying to steal a pair of
shoes from a store and then shot and wounded the store
security guard and a bystander. After being found mentally
incompetent to stand trial for five years, Edwards eventually
came to trial but asked to represent himself. The Court found
him not competent to represent himself, and Edwards appealed
under the Sixth Amendment.

Question

Is the Court’s earlier requirement in Faretta v. California,

422 U.S. 806 (1975), that a criminal defendant need only be
“literate, competent, and understanding” to represent himself at
trial appropriate under the Sixth Amendment right to self-
representation when he is otherwise unable to conduct a
coherent defense?

Conclusion

The Court held that the Constitution does not forbid states
from insisting that a defendant have representation for those
competent to stand trial but who suffer from severe mental
illness to the extent that they cannot conduct trial proceedings
by themselves.

Before-Reading Activities for Indiana v. Edwards

1. Students may want to do some basic historical research

about the historical M’Naghten test for determining whether
an individual is competent to stand trial. Many resources are
available by searching for “M’Naghten’s Case (1843).”
2. The PBS show Frontline has an episode called “A Crime
of Insanity,” which deals specifically with the interaction
between law and psychology when dealing with the
criminally insane. You can find a wealth of resources for the
classroom by going to PBS’s Frontline website.
Text-Dependent Questions for Indiana v. Edwards

1. The Court refers to the decision in Faretta v. California,

422 U.S. 806 (1975), which held that a defendant has the
right to represent him- or herself without counsel if that is
what he or she truly wants. Why do you think someone
would want to represent him- or herself without a lawyer?
2. In Indiana v. Edwards, the defendant was determined to
be mentally competent to stand trial, but the Court found
there were three reasons why Edwards needed to be given
legal assistance. What were they?
3. In the dissent, Justices Scalia and Thomas say that
although Edwards was mentally ill, by refusing to let him
represent himself, the majority was doing a disservice to the
rights of the mentally impaired who are trying to be
mainstreamed. Do you agree with this argument or not?

After-Reading Critical Connections for Indiana v.

Edwards

1. The American Psychological Association website at

www.apa.org can provide further reading for competency
when it comes to the determination of trial competency. A
search for “determining trial competency” on the APA
website will take you to a number of other sources for your
students’ consideration.
2. TheJuryExpert.com website has some good information
regarding defenses that are tied to a defendant’s mental
state. A search for “novel defenses in the courtroom” on the
site will take you a listing of other specific mental-issue
defenses to discuss.

LAW AND LITERATURE LESSON IN ACTION WITH

THE FEATURED LITERATURE SELECTION “THE
YELLOW WALLPAPER,”
BY CHARLOTTE PERKINS GILMAN
The unnamed first-person narrator tells her story of
recuperating after childbirth in a large summer house rented by
her husband, John. John, also her doctor, feels that her nervous
depression is best treated with complete rest and places her in
a large room at the top of the house.
He orders that she must have no distractions: no visitors, no
time with the baby, no reading, no exercise. Because she has no
other stimulation, the narrator is at first reviled by and then
becomes obsessed with the yellow wallpaper in the room. She
starts to imagine that women are trapped behind the wallpaper,
and as her psychosis increases, she begins to believe that she
herself is one of the women behind the wallpaper, and she is
determined to remain in the house forever.

Psychological Case Study of “Jane”

For this assessment, students will be required to write a

case study of the narrator. A case study is an in-depth analysis
of a single person, often used in clinical cases or in situations
when lab research is not possible or practical. While the narrator
in the text is unnamed, she refers to someone named “Jane” at
the end of the story, and many people have interpreted this to
be a dissociative reference to herself.
Because of the actions at the end of the story, John has
decided to commit Jane to a mental institution. Your job is to
determine if this is the best course of action for Jane.
While format for a case study can vary, for this assignment
your study should include the following information:

I. Case History
1. Background Information
The first section of your paper will present your
client’s background. Include factors such as age,
gender, work, health status, family mental health
history, family and social relationships, drug and alcohol
history, life difficulties, goals and coping skills, and
weaknesses. You should provide direct quotes from the
 text in order to support these findings.
2. Description of the Presenting Problem
Describe the problem or symptoms that the client
presented with. Describe any physical, emotional, or
sensory symptoms reported by the client. Thoughts,
feelings, and perceptions related to the symptoms
should also be noted. Again, you should reference the
text in order to provide evidence for the problem.
3. Your Diagnosis
Provide your diagnosis and give the appropriate
Diagnostic and Statistical Manual code. (In order to
come to a diagnosis, you will need to go to PsychCentral
and look at the disorders listed at
http://psychcentral.com/disorders.) Explain how you
reached your diagnosis, how the client’s symptoms fit
the diagnostic criteria for the disorder(s), and any
possible difficulties in reaching a diagnosis.
II. Intervention
The second section of your paper will focus on the
intervention you think can be used to help your client. You
should research different treatment options for your
diagnosis and weigh the efficacy of each one. Using the
information you know about your client from the story,
make a recommendation about which course of treatment
you believe would be the best, making sure to explain fully
why you think it is the best course of action.

Teaching Note: The length of the assignment is up to

the individual teacher, but this is an excellent assessment
opportunity for students to practice justifying opinions by
directly quoting and citing from the text. Students can either
use MLA citation form when writing this case study or APA
formatting, as it is a psychological text.

A NOTE FROM THE AUTHORS

Mental illness is a topic that some students have a close
familiarity with, while others have only been exposed to the
realities of mental illness within films, TV, or popular culture.
Regardless, students have the capacity to understand
characters who may not be thinking in typical fashions. Rather
than dismissing a character as “crazy” or “insane,” this
thematic connection offers a unique opportunity to have a
meaningful discussion about the impact of mental illness not
only on those closest to the ill but the impact on society as a
whole.
In addition, this thematic connection challenges students to
reflect on their belief structures in regard to the moral and
proper treatment of someone who cannot care for him- or
herself. It drives home the concepts of compassion and
understanding and even issues of the boundaries of medical
care.
In this study lies the opportunity to engage in discourse
about the way we treat others who are different from ourselves,
the norms that we expect others to fall in line with, and how we
adapt to situations where we may not be in the majority.
 Chapter 7
Crime and Punishment
But in natural justice is nothing but the prisoner’s overt act
to be considered? How can we adjudge to summary and
shameful death a fellow creature innocent before God, and
whom we feel to be so?

- Billy Budd
A teenager and his gang go on a violent crime spree,
looting, raping, and murdering without any pangs of conscience.
A man is unjustly imprisoned and seeks revenge on those who
put him there. A pawnbroker is murdered by an impoverished
man who believes that he can better use her money for the
greater good of society. A group of friends gather to mete out a
sentence to one of their own who they believe has “gone too
far,” while the members of another community placidly draw
lots to see who will be sacrificed to ensure a good corn harvest.
A writer seeks to understand why two criminals committed
murder. The reasons we punish people are examined. The
events at a hanging are recounted. Torture is championed in
order to save lives.
The idea of cause and effect, of an act and its
consequences, of a crime and its punishment is ingrained in
humans from a very early age. Small children might be given a
time-out for taking another child’s toy. Older children might be
grounded or have chores added to their day when they fail to
meet a curfew or neglect homework in order to play video
games. Students are given detentions, suspensions, or
expulsion when they break the school rules, which can range
from dress code violations to assault on another student.
There is almost never a time in our lives when we are not
presented with rules and the consequences that follow if we
break them. The Eighth Amendment of the U.S. Constitution
acknowledges that punishments should be given but prohibits
“cruel and unusual punishment” from being inflicted.
 Ultimately, why do we punish people at all, and how can we
determine if that punishment is right or not?

CRIME AND PUNISHMENT: ESSENTIAL QUESTIONS

FOR
THIS THEME
1. Why do we punish people? Is punishment justified in
every circumstance?
2. Who gets a say in how someone should be punished?
What factors should we take into consideration?
3. How should someone be punished? What levels of
punishment can we accept? What if we disagree with what
the majority believes?

SUGGESTED LITERATURE SELECTIONS

Fiction

Crime and Punishment, by Fyodor Dostoevsky:

Raskolnikov, a poor former student, decides to kill a
dishonest pawnbroker for her money. He believes that he
can do better things in the world with her money and states
that there are times when murder is the correct thing to do
if it serves a “higher purpose.”
What this text has to offer: A consideration of good and
evil and whether there are some people who “deserve” to
die. One can question whether Raskolnikov himself becomes
evil through the act he commits and seeks to conceal. Is the
punishment that Raskolnikov ultimately receives enough to
satisfy the reader? The psychological effects of concealing a
crime is another area for exploration with this novel.
The Count of Monte Cristo, by Alexandre Dumas:
Edmond Dantes is framed and convicted without a trial for a
crime he did not commit. After 14 years of imprisonment, he
manages to escape and re-creates himself as the Count of
Monte Cristo, seeking revenge on those who unjustly
imprisoned him.
What this text has to offer: A consideration of the
effects of punishment on those who are not guilty and how
it can bring about a complete change of personality. Can
revenge—or delayed punishment—be sweet? Is it even
right?
A Clockwork Orange, by Anthony Burgess: The setting is
England in a dystopian future where Alex, a 15-year-old boy,
and his group of friends find pleasure looting and raping.
After his capture by the police, Alex is imprisoned and
subjected to an experimental technique designed to change
his ways. He is released from prison and is forced to see if
he can survive now that he has been “changed.” (MA)
What this text has to offer: Burgess’s novel forces the
reader to consider whether the rehabilitation of a career
criminal is really possible.
“God Sees the Truth but Waits,” by Leo Tolstoy: Ivan
Dmitrich Aksionov travels to a fair in order to conduct some
business and ends up being convicted of the murder of his
traveling companion. Although innocent, he is sent to
Siberia on circumstantial evidence. After 26 years, the man
who really committed the murder comes to Aksionov’s
prison. Aksionov is faced with the choice to seek revenge or
to forgive the man.
What this text has to offer: Tolstoy’s short story allows
the reader to question what a person would do in a situation
where, if unjustly convicted of a crime, he or she finally
came face-to-face with the person who really did commit
the crime. Would you seek revenge?
“Some of Us Had Been Threatening Our Friend Colby,”
by Donald Barthelme: Barthelme’s postmodern short story
takes a tongue-in-cheek look at a group of friends who
decide to execute one of their own who has “gone too far.”
What this text has to offer: A look at the historical
spectacle surrounding public execution and support for the
theory that punishment can be seen as a deterrent.
“The Lottery,” by Shirley Jackson: Members of a
 community must draw lots to see who will be stoned to
death to ensure a good harvest.
What this text has to offer: Readers can consider
whether the punishment being meted out really is fair or
not. What are the real—historical and current—reasons
behind the sorts of punishments we give?

Nonfiction

In Cold Blood, by Truman Capote: Capote’s nonfiction

novel explores the pursuit, conviction, and execution of Dick
Hickock and Perry Smith after they kill the Clutter family in
rural Kansas following a robbery gone bad.
What this text has to offer: Capote spent six years
researching and communicating with the murderers, trying
to get an insight into what caused them to commit this
mass murder. Readers are able to explore the background of
the killers and gain an understanding of what may have
caused someone to turn to a life of crime. Is it right to feel
sympathy for someone who has taken the lives of others?
“A Hanging,” by George Orwell: In this short essay,
Orwell describes the hanging of a man in Burma for an
undisclosed crime.
What this text has to offer: A discussion of the death
penalty and whether the taking of another human life is
inhumane or not.
“The Humanitarian Theory of Punishment,” by C. S.
Lewis: Lewis’s essay examines punishment and the reasons
why our society does it.
What this text has to offer: An interesting examination
of justice and mercy and whether taking a detached look at
punishment causes more problems than it solves.
“The Case for Torture,” by Michael Levin: Levin’s essay,
written well before 9/11, argues that for the greater good it
is right to torture people to get information.
What this text has to offer: This essay provides a good
background for the discussion of whether it is acceptable to
 “punish” people before they have even committed a crime.

APPLICABLE CASE LAW

Case #1: Payne v. Tennessee, 501 U.S. 808 (1991)

Facts of the Case

Pervis Tyrone Payne was convicted of two counts of first-

degree murder. During the sentencing phase of the trial, the
state provided testimony from a surviving victim of Payne’s
attack, and Payne was sentenced to the death penalty. Payne
appealed, saying that the victim impact statements violated his
rights under the Eighth Amendment and the holdings of two
other Supreme Court cases, Booth v. Maryland, 482 U.S. 496
(1987), and South Carolina v. Gathers, 490 U.S. 805 (1989),
which prohibited victim impact statements during the penalty
phases of capital cases.

Question

Should victim impact statements be allowed when

determining whether the death penalty should be applied to a
convicted criminal?

Conclusion

The Supreme Court overturned its former ruling and found

that victim statements during the sentencing phase are
constitutional. Chief Justice Rehnquist wrote the opinion of the
Court stating that if the fact finder is going to consider all of the
evidence regarding a person’s culpability, then testimony
regarding the harm of the person’s actions on the victim and/or
the victim’s family should be allowed.

Before-Reading Activities for Payne v. Tennessee

1. This case focuses on someone whose guilt is not in
question—he has already been determined to be guilty, and
the focus is on what level of punishment he should receive.
Students should look at the concept of mitigating and
aggravating testimony when it comes to determining a
punishment for a criminal. What things do they think should
be allowed to be heard, and what things could be
determined to be irrelevant?
2. Another issue in this argument is the legal concept of
stare decisis (pronounced “starry dih-SIGH-sis”). Stare
decisis is the legal concept of following a precedent set by
other courts. If other courts have already ruled on an issue,
it is accepted under stare decisis that a later court should
follow the same ruling as long as the facts of the case are
similar. It is one of two ways—the other being laws passed
by legislative bodies—in which courts make their decisions.
Many decisions of the U.S. Supreme Court have created
stare decisis. Students may want to explore and discuss the
effects of this type of “law making.”

Text-Dependent Questions for Payne v. Tennessee

1. What was the initial reasoning for not allowing victim

impact testimony during a trial? What did the courts want
the jurors to focus on?
2. How did the lessening of offenses punishable by death
and sentence ranges shift the focus of a trial in the favor of
allowing victim impact testimony?
3. How does allowing mitigating factors about the
defendant encourage the use of victim impact statements?
What specific things did the jurors hear about both the
defendant and the victim during the sentencing phase of
the trial?
4. How does the Court address the argument of the
defendant and his amicus that the Court should follow stare
decisis?
After-Reading Critical Connections for Payne v.
Tennessee

1. The focus of punishment is often on the person who has

committed the crime, but students can do further
investigation into what happens to a victim and his or her
family after a crime is committed. What rights and support
do victims have? The Center for Victims Rights is an
excellent place to start (www.cvhr.org/about/the-victims-
rights-movement).
2. The Crime Victims’ Rights Act can be found at the U.S.
Department of Justice
(www.justice.gov/usao/resources/crime-victims-rights-
ombudsman/victims-rights-act). Students may want to read
this act and compare the rights of victims to the rights of
the accused. How are they different from the rights of a
criminal defendant? What options does the victim of a crime
have if the act is not followed?

Case #2: Ingraham v. Wright, 430 U.S. 651 (1977)

Facts of the Case

James Ingraham, an eighth grader, was restrained by the

vice principal and then paddled more than 20 times by the
principal. He needed medical attention after the paddling. He
and another student brought a lawsuit against the school.

Question

Did the punishment violate the “cruel and unusual”

punishment clause of the Eighth Amendment, and did the
students deserve a due process hearing under the Fourteenth
Amendment?

Conclusion
 Corporal punishment in schools does not violate the cruel
and unusual clause of the Eighth Amendment, and students do
not need due process as provided under the Fourteenth
Amendment before receiving corporal punishment in schools.

Before-Reading Activities for Ingraham v. Wright

1. Have a class discussion regarding corporal punishment

in the students’ own lives. How many received corporal
punishment as a child? Will they give corporal punishment
to their own children? What are acceptable and
unacceptable forms of corporal punishment?
2. Students can explore corporal punishment and its uses
around the world at www.corpun.com, a site dedicated to
reporting unbiased information about corporal punishment
and its global uses.
3. Students may also want to explore their rights as
minors. Do they have the same rights as adults? Do they
have the same constitutional protections?

Text-Dependent Questions for Ingraham v. Wright

1. What was the extent of the “licks” the petitioners in this

case received? Do you think, as the Court said, that this was
a better solution than suspension or expulsion? Why or why
not?
2. In the decision, the majority stated that the cruel and
unusual clause did not apply because the paddling was not
really a punishment. What did the Court say was necessary
for there to really be a punishment?
3. How does the Court say a school differs from a jail? Do
you agree? How might you argue that a school is like a jail?
4. What safeguards did the majority say prevented
excessive punishment from happening to students?
5. The Court maintained that giving students due process
before corporal punishment would detract from the
authority of the teacher. Do you agree? Why or why not?
After-Reading Critical Connections on Ingraham v.
Wright

1. Students can compare this decision to recent cases of

purported child abuse by public figures who were
disciplining their children. Should parents punishing their
children be treated differently than a school punishing
children?
2. Nineteen states still allow corporal punishment. Discuss
the impact of corporal punishment in schools and how
effective it is. This Washington Post article lists the states
that still allow corporal punishment in schools:
www.washingtonpost.com/blogs/answer-
sheet/wp/2014/09/18/19-states-still-allow-corporal-
punishment-in-school/.
3. Students can watch the 2012 documentary The Board of
Education, which focuses on the 19 states that still allow
corporal punishment. In light of the contents of the film, do
students believe that Ingram v. Wright should still be valid
law?

Case # 3: Gregg v. Georgia, 428 U.S. 153 (1976)

Facts of the Case

Troy Gregg was charged with and found guilty of armed

robbery and murder and was sentenced to death. He appealed
his death sentence.

Question

Does the death penalty violate the Eighth Amendment

against cruel and unusual punishment?

Conclusion
 The Court held that the death penalty, under the Georgia
statute, did not violate the Eighth Amendment because the jury
had a choice during sentencing, mitigating evidence was
allowed, and the death penalty was not applied arbitrarily under
the specific capital-sentencing procedures of the state.

Before-Reading Activities for Gregg v. Georgia

1. Students should have a discussion about the types of

legal punishments that are available. Legal punishment can
include community service, a fine, imprisonment, probation,
parole, restitution to victims, or the death penalty. When
would students impose each type of punishment? What
crimes fit which punishments?
2. Before reading, look at your own state’s statutes
regarding punishment and the range of punishments
available, particularly for murder. Should someone who kills
another person automatically be sentenced to death?
3. Most capital cases are held in two parts: the trial and, if
the defendant is found guilty, the penalty phase. Examine
and discuss the ideas of mitigating and aggravating factors
when it comes to sentencing. Should these be allowed?

Text-Dependent Questions for Gregg v. Georgia

1. The Court states that the constitutional prohibition

against “cruel and unusual” punishment has been
considered before, but states that due to continual changes
in values over time, the Court should evaluate whether the
death penalty is cruel and unusual again. Why revisit the
idea? What might have changed?
2. The Court states that just sentencing someone to death
is not cruel in and of itself. There must be “something more
than the mere extinguishment of life,” as stated in In re
Kemmler, 136 U.S. at 447 (1890). What types of things do
you think the Court is referring to, if not just death itself? Do
you agree with the Court’s stance? Why or why not?
3. The Court states that one measure of whether the death
penalty is appropriate is whether the jury imposed the
sentence or not, if given a choice to impose a lesser
sentence. Do you think this is a valid standard? Can you
think of occasions where this might not be a good standard
for determining the validity of a punishment?
4. What safeguards does the State of Georgia have in
place so that the imposition of the death penalty is not
“arbitrary or capricious”?

After-Reading Critical Connections for Gregg v. Georgia

1. For more information on both sides of the death penalty

issue, visit the Death Penalty Information Center site at
www.deathpenaltyinfo.org, Pro-deathpenalty.com at
www.prodeathpenalty.com, and the death penalty section of
ProCon.org at http://deathpenalty.procon.org.
2. The Court discussed the continual changes in values
over time. Gregg v. Georgia was decided in 1976. Read the
April 21, 2015, Atlantic article “The Death Penalty Becomes
Rare,” and compare the information in the article to the
argument presented by the Supreme Court. Given the facts
in the article, do you believe the Court would decide the
same way today? Why or why not?

LAW AND LITERATURE LESSON IN ACTION WITH

THE FEATURED LITERATURE SELECTION BILLY
BUDD, BY HERMAN MELVILLE
In Billy Budd, the main character is an impressed sailor on a
British war ship during the French Revolution, shortly after two
notable mutinies had occurred in the British navy. Billy Budd is
well liked by his fellow sailors and by Captain Vere, but the
master-at-arms, Leiutenant Claggart, takes an immediate dislike
to him. Claggart frames Billy for mutiny, and when confronted
by the captain with the charges, the incredulous Billy punches
Claggart once in the face, killing him instantly. In order to avoid
a mutiny, Captain Vere holds a hasty trial and condemns Billy to
be hanged, even though he believes Claggart was lying about
Billy and the mutiny.
After reading the book, students will write a multigenre
paper focusing on the circumstances of the trial and Billy’s
punishment. Was what happened to Billy right or not?

The Multigenre Paper

Multigenre papers, popularized by Tom Romano, can be

written in a variety of forms, but one of the most interesting
aspects of them is that students are allowed to express the
ideas they would put in an essay in a freer format, allowing
them to do a variety of types of writing to express their points.
Teaching Note—Multigenre Papers: There are many
examples available online with a wide variety of multigenre
paper types. This assignment is geared for high school
students, and it does not require research on the part of the
writer. Some examples of the multigenre paper do ask the
writer to do research.

The Assignment

For this assignment, you will create a multigenre paper in

which you explore the ideas of Billy’s “crime” and the
punishment that he receives in Melville’s novella Billy Budd.
Instead of writing an essay, you are being asked to use different
forms of writing in order to creative a cohesive piece that will
communicate your thoughts.
Your pieces can be written from a third-person perspective,
or more interestingly, you can create pieces using a voice or
multiple voices from the characters in the book. You will do this
by putting together five different genres in order to get your
ideas across to the reader
You must pick a genre from five different categories, which
represent varying types of writing. If you choose to do more
than five, you can repeat categories, pick from the last
category, or use a genre not listed. You can present the genres
separately or interweave them into a larger framework;
however, they should be connected by the unifying theme of
what you want to say regarding Billy’s punishment in the book.
Do not simply cut and paste five genres and call it a paper.
Use your discretion as to the margins and font you wish to use
for each genre. This is your opportunity to make something that
is interesting both visually and conceptually.
Your final paper must include

A title page
A table of contents that tells your readers what genres
you are including
An introduction to the book and your topic—consider
this an author’s note to your readers explaining what they
will be experiencing as they read your paper.
At least five different genres from five different
categories. (See a list of possible genres in the table below.
This is not an exhaustive list. If you wish to use a genre not
listed, please approve it with me first.)
A set of endnotes that provides an explanation for each
of the genres. For example, if you have written a poem, your
endnote should explain its connection to the book, why you
chose that particular genre, as well as what the reader
should understand you to be saying about the book through
that genre after reading the paper.

Genre Ideas
Group 1: Print Media Group 2: Visual with Group 3: Visual
Words Display
Newspaper
article Poster Picture/photograph
Obituary Invitation Graph
Editorial Advertisement Map
Letter to the Travel brochure Certificate
editor Greeting card Recipe
Advice column Cartoon Collage
Magazine article
 Group 4: Group 5: Creative Group 6: Structured
Informational Writing
Résumé
Interview Memoir Propaganda
Survey Song Book review
Trivia game Poem Letter
Time line Short story Speech
Directions Personal narrative Medical report
Handbook Conversation

Grading

Structure (20%): Paper includes title page, table of

contents, introduction, at least five genres (one from each
category), and endnotes.
Quality of Content and Style (60%): Each of the required
elements is strong in language choice, clarity, meaning, and
information. The writing meets the intended purpose and is
appropriate for the selected genre. While the author is
allowed liberties beyond the text, the content is consistent
with the plot of the book
Creativity/Appropriateness of Genres (20%): The paper
shows thought, effort, and creativity on the part of the
writer. The genres included are varied and appropriate for
the content presented, and specific genre conventions are
met.

Teaching Note—Grading: This is just a rough

percentage guide to grading, and it can be changed to suit
the needs of your classroom.

A NOTE FROM THE AUTHORS

Punishment is something nearly every student has an easy time
comprehending—from their early days of preschool time-outs to
referrals that are handed out in classroom settings, the overall
theme of the unit is easily grasped. Therefore, using the
multigenre paper with a thematic unit like this challenges the
students to pursue higher-order thinking.
There are many ways you can choose to do a multigenre
paper, but allowing students to use creative writing in order to
explore themes in a book moves them to the upper levels of
Bloom’s taxonomy. Not only do they have to select and create
the genres, but providing an explanation forces students to
think about what they are creating.
Another benefit of using multigenre writing is that it allows
students to “speak” using the voices of a variety of characters.
Students could explore the unexplained reasons why Captain
Vere sentences Billy to death and the reasons why Billy forgives
him. Leiutenant Claggart can speak from beyond the grave, and
minor characters like Squeak and the Dansker are allowed to
have greater dimensions than they are given in the novella.
Students may initially struggle with the concept of a
multigenre paper because it does ask them to think outside of
the essay-writing box with which they are so comfortable.
However, at the end of the assignment, most students find this
to be a much more interesting way of communicating
information, and they really end up enjoying this method of
writing. Multigenre papers could be applied to many of the texts
we have included for your consideration.
When grading multigenre papers, we have found that
sometimes it is helpful to split the grading into two separate
grades: a holistic grade for the creativity and “feel” of the paper
and a grade for the required elements of the paper. This allows
students who are hard workers but who do not see themselves
as particularly creative to still get a good grade for the work
they have done if they have demonstrated the requirements,
and it rewards those students who go above and beyond with
their creative thinking.
When both grades are added together, students are
generally happy with the results, regardless of which type of
learner they perceive themselves to be.
 Chapter 8
Protecting Your Freedoms
War is peace. Freedom is slavery. Ignorance is strength.

- 1984
A society where books are thrown into fires rather than
stored on bookshelves. A young German girl harboring a fugitive
begins hiding forbidden books as a means of preserving history.
A teenage boy loaded down with sandbags and blindfolds in a
government’s attempt to equalize its citizens. A science teacher
thrust into the town gossip for teaching an unpopular topic.
A feminist promoting equal treatment and the desire to be
more than a trophy to a man. A philosopher and government
oppositionist peacefully opposing a government he believes is
acting in a morally corrupt fashion. An author advocating for
prejudice rather than denying it exists.
Protecting one’s own freedoms—the ability to speak, write,
move about freely, or associate with others—is often a
contentious issue played out in literature. From a government
seeking control over its citizens to a woman seeking recognition
as a contributing member of society to one man’s attempt to
stand against formal government, freedom is a highly coveted,
fundamental principle for any human. In literature, we see
characters fight for freedom against persecution, government,
powerful individuals, and societal structure.
The multitude of freedoms that individuals strive to protect,
and protect fiercely, create much dissention in literature, for in
order for a freedom to need protection, it must be in danger.
Characters must be in distress and facing a loss of that freedom.
There is something about the threat of losing a freedom that
strikes a chord with nearly everyone.
Students, particularly adolescents, enter stages of
expanding freedoms while also facing the fear of losing those
new freedoms—take, for instance, the teen with a new driver’s
license and privilege to use the family vehicle, a new freedom
that lies in jeopardy of loss upon the first accident or speeding
ticket. These are the same types of struggles that characters in
literature face as individuals seeking freedom from government
control or societal disdain. As a result, “protecting your
freedoms” is a high-interest and versatile application of law and
literature in action both historically and today.

PROTECTING YOUR FREEDOMS: ESSENTIAL

QUESTIONS
FOR THIS THEME
1. When one of your freedoms is threatened, how should
you respond?
2. What freedoms are essential to leading a meaningful
life?
3. What freedoms are innate in humanity and which are
earned and, subsequently, able to be lost?

SUGGESTED LITERATURE SELECTIONS

Fiction

Fahrenheit 451, by Ray Bradbury: This dystopian novel

presents a world where books are outlawed. Gary Montag,
hired to burn any books that are found, begins to question
this practice and schemes to work against censorship.
What this text has to offer: A major theme of this book
is censorship, so the novel offers the opportunity to discuss
the importance of the ideals set forth in the First
Amendment.
The Book Thief, by Markus Zusak: This novel is the story
of a young girl, Liesel Meminger, living in Germany during
World War II. Her foster family hides a Jewish man who
teaches her how to read. She then begins to steal books
that the Nazi Party is going to destroy.
What this text has to offer: This novel offers the
opportunity to discuss the power of words both in the
context of the Nazi’s use of words and the power the
protagonist finds in language.
“Harrison Bergeron,” by Kurt Vonnegut: This science
fiction short story tells of the title character’s attempt to
overthrow the government, a government that dictates that
all Americans are entirely equal and imposes handicaps in
order to ensure that equality.
What this text has to offer: This story offers the
opportunity to discuss the power of the government and the
relationship between equality and freedoms.
Inherit the Wind, by Jerome Lawrence and Robert Edwin
Lee: This play harkens back to a fictionalized version of the
1925 Scopes Monkey Trial, when a small-town high school
teacher was charged with breaking state law for teaching
evolution in science class. The play features a colorful cast
of characters, from the young high school teacher to overly
dramatic lawyers and a stereotypical small town
mesmerized by the courtroom drama.
What this text has to offer: Hosting a reader’s theater is
an interactive method that can be used to work through this
text and allows a chance for you to highlight points in the
play where characters discuss the importance of the
freedom to make choices, think independently, and be free
from an overreaching government.
The Crucible, by Arthur Miller: This play, set during the
Salem witch trials, features a man facing death for a crime
that he did not commit. He refuses to confess in order to
save his own life and chooses to die in the knowledge that
he is telling the truth.
What this text has to offer: Parallels are often made
between this play and McCarthyism; therefore, the play
offers the opportunity to explore the intolerance of ideas
and why the free flow of ideas is essential.
Nothing but the Truth, by Avi: In this documentary
novel, Phillip Malloy is punished for humming during the
national anthem. This novel explores the idea of truth
through the use of a variety of documents such as memos,
 letters, phone conversations, dialogues, and diary entries.
What this text has to offer: An opportunity to discuss not
only the First Amendment but also the relativity of truth.
Does one’s sincerity in his or her belief affect the
“rightness” of the position?

Nonfiction

A Vindication of the Rights of Woman, by Mary

Wollstonecraft: This was one of the earliest pieces of
feminist literature that argued for a semblance of equality
between men and women. Noting that women, as mothers
who raise and care for the future citizens of the country,
should be “companions” to their husbands rather than mere
wives, the piece promoted the idea that a woman’s worth is
based on more than good looks and housekeeping skills.
What this text has to offer: Considering the essay was
written in the late 18th century, there is a great deal of
opportunity to discuss the meaning of equality and how it is
that women, in particular, traveled a path to eventually
attain equal rights. Do all people really deserve to be
treated as equals?
“In Defense of Prejudice,” by Jonathan Raush: Raush’s
essay features the argument that prejudice is necessary in
order to have open dialogue about ideas so that the
prejudices can be confronted and criticized rather than
ignored or hidden. Pretending that prejudice has been
eradicated or does not exist does not mean that prejudice is
absent but only that it is being ignored. Acknowledging the
existence of prejudice allows for meaningful dialogue to
occur, which may, in turn, actually change belief structures.
What this text has to offer: The overriding theme is that
if we do not allow speech that reflects true prejudices, then
we do not know how to stop prejudice. The dialogue that
openly acknowledges prejudice, differing opinions, and
conflicting ideas is important and necessary in order to
change human nature.
 Civil Disobedience, by Henry David Thoreau: Thoreau’s
largely political essay promoted the notion that individuals
need not follow the government blindly and that just
because the government exists and a majority of citizens
vote for the government to exist, does not mean that the
entity should be followed without careful self-reflection.
What this text has to offer: Thoreau’s stance was one
that charged a citizen to deeply question governmental
structures, particularly ones that allowed such atrocities and
inequalities as slavery to exist. This text fosters discussion
about why one may or may not choose to follow the
government and the eventual consequences of those
actions. It also explores how citizens can protest the
government without overt fighting and how peaceful
protests have changed the course of history.

APPLICABLE CASE LAW

Case #1: Tinker v. Des Moines Independent

School District, 393 U.S. 503 (1969)

Facts of the Case

A group of Iowa high school students were disciplined for

wearing black armbands to school as a symbolic protest of the
Vietnam War.

Question

Do public school students have First Amendment rights?

Conclusion

Yes, to an extent. School administrators can prohibit speech

that might create a “substantial or material” disruption to the
school day. Therefore, students do have First Amendment rights,
but those must be balanced with the need of a school to
function in a safe and orderly fashion.

Before-Reading Activities for Tinker v. Des Moines

1. Discuss the concept of symbolic speech or conduct that

expresses an idea. Find examples of symbolic speech in
current events—political protests, T-shirt campaigns, flag
burning—and determine the “message” that is being
promoted by the conduct.
2. Bring in school administrators to discuss situations
where they balance the First Amendment with the need to
maintain the school’s functions.

Text-Based Questions for Tinker v. Des Moines

1. What disruption were school officials afraid would occur

if the armbands were worn to school? When was the policy
forbidding black armbands actually implemented? Why is
the timing of the policy implementation important in this
case?
2. What is meant by a “material and substantial”
interference?
3. How are armbands considered “speech” under the First
Amendment? What other types of activities do we
participate in that might be considered speech in light of
this?
4. Why do you think the school administrators were so
fearful of the students wearing armbands? Were their
concerns reasonable?
5. What does it mean when the Court states that the
classroom is a “marketplace of ideas”?

After-Reading Critical Connections for Tinker v. Des

Moines
1. How did the students in Tinker demonstrate a sincere
belief in their protest? Must someone have a sincere belief
in their cause in order to deserve First Amendment
protections?
2. The website www.streetlaw.org has a variety of activities
that promote student discourse about levels of disruption,
types of symbolic speech, and newer case law regarding
dress code violations, student protests, and off-campus
expression litigation. Consider integrating these as a means
of having students explore the boundaries and limits of free
expression in today’s schools.
3. Why are expression or speech considered fundamental
rights? Have students articulate why the ability to express
an opinion or speak one’s mind is important.
4. Using the quote from the case that schools are a
“marketplace of ideas,” illustrate the various “ideas” that
make up your school’s “marketplace.” What different beliefs
and values do students hold in your school? How diverse is
this mix? Are differences of opinion valued or suppressed by
fellow students? By school administrators?

Case #2: Engel v. Vitale, 370 U.S. 421 (1962)

Facts of the Case

A public school district in New York was forcing students to

recite a state-mandated prayer that included a reference to
“Almighty God.” A diverse group of religious opponents sought
to have the prayer removed under the provision in the First
Amendment that forbids the government from establishing or
forcing religious practices.

Question

Does forcing students to say a state-mandated prayer

violate the First Amendment?
Conclusion

Yes. No public school student should be forced to participate

in or to say a state-mandated prayer. This is akin to a state
“establishing” a religion, which is clearly rejected in the First
Amendment.

Before-Reading Activities for Engel v. Vitale

1. Why is religion a highly personal decision, so much so

that the authors of the Constitution mentioned it twice—the
freedom to choose your own religion but also the freedom
from the government establishing a religion that one must
practice?
2. Read the prayer included in the case and discuss
whether the government is promoting one religion over
another. What details support this?

Text-Based Questions for Engel v. Vitale

1. What is unique about the group of people challenging

the prayer?
2. Why is it important to have a “constitutional wall” to
separate religion and the government? In what instances
might this wall be unnecessary?
3. The Court discusses the long struggle of U.S. founders
seeking to be free from the religious confines of England.
Why was this an important story to tell?
4. Is the prayer truly nondenominational? What makes it
different from something like the Pledge of Allegiance with
its reference to “under God”?

After-Reading Critical Connections for Engel v. Vitale

1. Students were allowed to remain silent or leave the

room during this prayer. Why was that argument not
 sufficient to allow the prayer in the classrooms?
2. What religious symbols are present in public places, and
why are those not subject to the same restrictions? What is
unique about a public school classroom that makes a prayer
like this unconstitutional?
3. What value does society place on religious practices?
Are some practices treated differently than others by
society as a whole? What does that say about the intention
that all citizens should have the freedom to choose their
own religion?

Case #3: Morse v. Frederick, 551 U.S. 393 (2007)

Facts of the Case

A high school student is suspended for unfurling a banner

that read “Bong Hits 4 Jesus” at an Olympic-torch run that
occurred on a public street in front of the school building during
the school day.

Question

Was the student’s suspension for displaying the banner a

violation of the student’s First Amendment rights?

Conclusion

No. The principal had the ability to discipline the student

because the banner was contrary to the school’s compelling
interest to promote a drug-free environment.

Before-Reading Activities for Morse v. Frederick

1. Have students search for an image from the Olympic-

torch procession involved in the Morse case. Discuss
whether the sign was appropriate for the torch rally and
 whether the administration in your school would allow it.
2. Investigate your school’s handbook for policies
regarding student expression within the classroom or at
school activities. Distinguish what expression is allowed or
prohibited at school activities outside the classroom. In
addition, discuss how one might define a “school activity.”
Are football games played at off-campus locations
considered a school activity? Parades where the marching
band performs on a weekend? Student council conventions
in a different state? Should a school be allowed to regulate
student conduct at these types of events?

Text-Based Questions for Morse v. Frederick

1. Frederick, the student, unfurled his banner across the

street from the school during the Olympic-torch run. Why
was he still subject to school rules when he was off school
property?
2. Under what rule was Frederick punished? How did this
case become one of free speech rather than of an illegal
school policy? (Note: the policy itself forbade promoting
drugs, and the Court had no problem with this policy.)
3. The Court noted that part of a school’s job is to educate
against drug use—in fact, it is mandated in federal law.
Does this contradict the First Amendment in that it
mandates schools take a stance on something rather than
promote multiple viewpoints?
4. What does it mean to be “entrusted” in the care of a
school? In what ways does a school care for its student
population?

After-Reading Critical Connections for Morse v. Frederick

1. Discuss the school’s options if the sign said something

else, such as “Students for Peace” or “Abortion Is Murder.”
What messages would have been allowed and what
messages would have violated the school’s policy or the
 Constitution?
2. Did the student’s conduct materially interfere with or
disrupt the school activity? Why or why not?
3. Make a list of the “special characteristics of a school
environment” that the Court was alluding to when it
permitted Frederick’s suspension in this case.
4. The student admitted that he was trying to be funny
and get on television. He also claimed his sign was
“meaningless.” Does this change your opinion of the
outcome of the case?

LAW AND LITERATURE LESSON IN ACTION WITH

THE FEATURED LITERATURE SELECTION 1984, BY
GEORGE ORWELL
This 1949 novel portrays a writer secretly opposed to the
tyrannical government for which he works and that eventually
psychologically tortures him. The novel presents the concept of
“Big Brother,” the controlling government that monitors its
citizens 24/7 and the struggle for Winston Smith, the main
character, to protect and eventually lose his freedoms to think,
believe, and love.
The burning desire of the main character to fight for his
freedom within a society that is constantly following him,
manipulating him, and changing his behavior is an extreme yet
provocative opportunity to discuss the concept of control and
how sources of internal and external power can control our
behavior and attitudes.
Changes to government often start with a minority voice—
without Gandhi, there would be no free India; without Martin
Luther King Jr., there would be no Civil Rights Act of 1964; and
without Nelson Mandela, there would be no ending of apartheid.
Imagine a world where “Big Brother” is in control. Have
students pretend that they are a member of the underground
group “The Brotherhood,” fighting against “Big Brother.” Design
a public service announcement (PSA) defending one freedom
being denied by “Big Brother” in the novel—for example,
censorship, surveillance, torture, invasion of privacy, or lack of
independence.
This underground announcement will need to be brief and
succinct (1 minute) so as to not be detected by “Big Brother.”
Find some sample PSAs (many can be found via an Internet
search; we recommend PSAs that are politically based in order
to pique student interest and mimic the expectation of this
assignment) and visit the Center for Digital Education website
(http://www.centerdigitaled.com) for an explanation of how to
create public service announcements.
Teaching Note: Students should script and storyboard
their PSAs before moving into filming them. Editing can be
done with iMovie or similar software. Students can upload
their PSAs to YouTube or another video site to accommodate
review. Reiterate the need for students to directly reference
and provide illustrations from the text to justify the argument
in the PSA.

A NOTE FROM THE AUTHORS

It seems nothing causes students to argue, debate, and get
angry more than allowing them the chance to discuss the idea
of freedom and the times they felt their freedoms were
trampled on. Students long for freedom—from school rules,
strict parents, or even societal norms. We have seen the fire
that burns in some of our most provocative students—the ones
who will speak up for the oppressed, fight for “fair” classroom
procedures, and find multiple ways to send a message beyond
speaking loudly.
It is important that we teach students how to exercise their
freedoms in a way that will not only produce results but that
allows their opinions to be heard. As we designed this chapter,
we found that nearly every piece of literature we teach finds a
character struggling against some sort of “power” and fighting
to maintain a freedom of one sort or another.
This type of unit is not limited to freedom of speech or
freedom of religion but also lends itself to the simple concept of
the ability to choose what you want in life—what career you
wish to pursue, where you want to live, and how you want to
live your life. Help students navigate these conflicts that the
characters face and attempt to define “freedom” as it applies to
the students as individuals.
 Chapter 9
Reasonable Is as Reasonable Does
It takes two to make an accident.

- The Great Gatsby

A school bus accident traumatizes a small community. A
sister fights for her right to make her own medical decisions. A
teenager ponders the aftermath and guilt of causing a car
accident.
An author explores the source from which compassion
comes. A poor, black tobacco farmer who has cervical cancer
has her cells stolen. A journalist investigates the fast-food
industry.
The stories all examine humans’ behavior and the gray area
between actions that were reasonable and actions that were
unreasonable. Within a society, how do we determine how to
behave? In some instances, we have laws that define how we
should act, for example, we should not go faster than a certain
speed limit or we should not text and drive (but is speeding
always unreasonable?). But sometimes our behavior is not
legally defined as right or wrong.
What if we are obeying all of the traffic laws, yet we still get
into an accident? How does society determine who is at fault?
What interests shape the determination of who should be liable?
The law has a “reasonable person” standard. The
“reasonable person” standard examines whether an individual
was acting as a “reasonable person” would under the
circumstances. If a person was not acting according to this
standard, then he or she could be found negligent. But how
does a society determine “reasonableness”? This is the question
that the selected case law and selected literature examines.

REASONABLE IS AS REASONABLE DOES:

ESSENTIAL QUESTIONS FOR THIS THEME
1. What guides human behavior?
2. What makes certain behaviors “right”? What makes
certain behaviors “wrong”? Are these determinations
dependent upon the individual? How do the circumstances
change these determinations?

SUGGESTED LITERATURE SELECTIONS

Fiction

The Sweet Hereafter, by Russell Banks: This novel

begins with a school bus accident in a small town, then uses
four different characters’ perspectives to tell the story of the
aftermath of that accident. (MA)
What this text has to offer: This text gives the
opportunity to explore the human need to blame and the
realization that accountability is not always black and white.
My Sister’s Keeper, by Jodi Picoult: In this novel, a
daughter sues her parents for medical emancipation when
she is expected to endure another medical procedure in
order to donate a kidney to her sister, who is suffering from
leukemia.
What this text has to offer: This text does offer the
obvious legal issue of the daughter’s right to medical
emancipation, but it fits within the essential questions of
this chapter if the reader examines the parents’ behavior.
What guides the parents’ choices?
“Accident,” by Dave Eggers: This short story retells the
main character’s thought process after causing a car
accident.
What this text has to offer: This text offers the
opportunity to discuss whether accepting blame is essential
to resolving a conflict. This provides the opportunity to
discuss the bigger picture of the purpose of negligence in
our legal system.

Nonfiction
 “On Compassion,” by Barbara Lazear Ascher: This essay
explores the question of why people act compassionately by
offering examples of encounters with homeless people.
What this text has to offer: Although this text does not
directly deal with a person’s negligence, it does offer the
opportunity to explore the question of what guides people’s
behavior in a different context.
The Immortal Life of Henrietta Lacks, by Rebecca Skloot:
This nonfiction book tells the story of Henrietta Lacks, HeLa
to scientists, whose cells were taken in 1951 without her
knowledge. These cells led to important medical
discoveries, but she remained unknown and her family
remained poor.
What this text has to offer: This text offers the
opportunity to discuss what is reasonable behavior in the
world of medical research, especially when the issue
intersects with issues of race and poverty.
Fast Food Nation, by Eric Schlosser: This book
investigates the world of fast food by exploring the
development and the inner workings of the fast-food
industry.
What this text has to offer: This text offers the
opportunity to explore the idea of what the standard of
behavior is for a business. Specifically, does the fast-food
industry have any duty to the consumer? What is that duty?
Which practices that Schlosser discusses would you
consider breaches of that duty? What is the responsibility of
the consumer? Is it reasonable to eat fast food every day?

APPLICABLE CASE LAW

Case #1: Roberts v. Ring, 143 NW 151 (Minn.

1919)

Teaching Note: This case can be found in the Minnesota

Reports, volume 143, which is accessible as a free e-book.
Facts of the Case

The defendant, a 77-year-old man whose hearing and sight

were slightly impaired, was driving. A seven-year-old boy ran
out from behind a buggy, crossed the street, and was then hit
by the defendant.

Questions

1. Was the defendant negligent in failing to keep a proper

lookout or failing to stop his car?
2. Is the plaintiff held to the same standard of care as a
boy of his same age?

Conclusion

1. The defendant was negligent, but the jury should

consider the defendant’s age and infirmities when
determining that negligence.
2. The standard of care for a seven-year-old is the degree
of care exercised by someone of the same age.

Before-Reading Activities for Roberts v. Ring

1. When you are driving a car, what determines the level

of care you exercise? What circumstances should make you
go slower than the speed limit? Is it ever reasonable to go
faster than the speed limit?
2. Should the law expect more out of a driver with 20
years of experience versus one with less than one year of
experience?

Text-Dependent Questions for Roberts v. Ring

1. The Minnesota Supreme Court determined that the

lower court erred. Why?
2. The Court states that the examination of the plaintiff’s
negligence would be different if he had injured someone
else. Why is it different if the child is the one injured or the
one who injures? What if the defendant had a passenger
and in the accident the passenger was injured? Is the boy
negligent? How does the result effect the standard of care
one should apply?

After-Reading Critical Connections for Roberts v. Ring

1. If a 7-year-old is driving a golf cart, and the law states

that a person must be 14 years old to drive a golf cart, to
what standard should the 7-year-old be held? Does it matter
that the seven-year-old is engaging in something intended
for someone older? What would be the justification for an
older child to be held to an adult standard of care?
2. The “reasonable person” standard has been the subject
of much critique throughout history. How is a “reasonable
person” determined? How intelligent is the reasonable
person? What experiences does the reasonable person
have? What other factors should be considered? In this
case, the Court states that the defendant’s poor eyesight
and hearing loss should be considered, meaning, what
would a reasonable person with the same “infirmities” do
under these circumstances? In addition, the Court states
that the plaintiff’s age should be considered. What other
factors should be considered: gender, race?

Case #2: Breunig v. American Family Ins. Co., 173

N.W.2d 619 (Wis. 1970)

Teaching Note: If teachers want to cut the case in order

to only focus on the reasonable person question rather than
the other errors, students can stop reading at the end of page
624.
Facts of the Case

The defendant, under the influence of a schizophrenic

attack, hit the plaintiff’s truck. The psychiatrist at trial testified
that this schizophrenic attack made the defendant unable to
operate her car. In addition, the defendant had no knowledge
that this reaction might occur.

Question

Is mental illness an exception to the reasonable person

standard?

Conclusion

Mental illness is a defense if the attack of insanity is

unforeseeable. The Court states that a man should not be held
responsible if he could not know the risk.

Before-Reading Activities for Breunig v. American Family

Ins. Co.

1. The doctrine of negligence tries to make the victim

whole by holding someone responsible for his or her
careless act. These careless acts are not intentional but
result in accidents. What does our society value if we hold
people responsible for “accidents”?
2. What individuals should not be held responsible for not
acting in accordance with how a “reasonable person” would
act? What are the justifications for these exceptions?

Text-Dependent Questions for Breunig v. American

Family Ins. Co.

1. The Court differentiates this case from Eleason v.

Western Casualty and Surety Co., 35 N.W.2 301 (Wisc.,
 1948), because the epileptic knew that he might have a
seizure; therefore, it was negligent to drive a car. Do you
agree with the Court’s distinction? Why or why not?
2. As the Court states, mental illness is typically not a
defense to negligence. What is typically the justification for
holding insane persons liable for their torts? How is this
different than criminal law? Why would the Court take two
different approaches to holding mentally ill persons
responsible?

After-Reading Critical Connections for Breunig v.

American Family Ins. Co.

1. If the defendant is held not liable for the accident, then

the plaintiff will be left with the bill to fix his vehicle. Is this
justice? Why or why not? How do you weigh each party’s
interests?
2. If a defendant is driving and has a heart attack, then he
or she is not liable. Why does the Court distinguish between
mental and physical illness? For further reading on mental
illness and negligence, see Elizabeth J. Goldstein’s article
“Asking the Impossible: The Negligence Liability of the
Mentally Ill,” Journal of Contemporary Health Law and Policy
12, no. 67 (1996), available at http://scholarship.law.edu.

Case #3: Daniels v. Clegg, 28 Mich. 32 (Mich.

1873)

Facts of the Case

The plaintiff’s 20-year-old daughter was driving a horse and

buggy. She was in a hurry to find her father as her sister was ill.
She came over a hill, and the defendant was driving on the
same side of the road. The two parties collided.

Question
 In considering the plaintiff’s negligence, should her age and
the fact that she is a woman be considered?

Conclusion

Yes, the Court reasoned that women have less knowledge,

physical ability, and temperament; therefore, they should not be
held to the same level of care as men.

Before-Reading Activities for Daniels v. Clegg

1. The Insurance Institute for Highway Safety releases an

analysis of statistics from the U.S. Department of
Transportation about accidents. Discuss these statistics.
What conclusions can you draw? You can find these
resources at www.iihs.org by searching “gender statistics.”
2. Read and discuss the 2010 article “Women Are Safer
Drivers, the Stereotypes Die Hard,” by Anemona Hartocollis,
in the New York Times.
3. Write and discuss this prompt: “Discuss your
experiences with gender bias. Discuss the privileges you
receive as a result of your gender.”

Text-Dependent Questions for Daniels v. Clegg

1. How does the Court distinguish this case from that of

the railroad engineer in Lake Shore and Mich. Southern R.R.
Co. v. Miller, 25 Mich. 274 (1872)?
2. Why should the level of care a person takes depend on
the potential victim? What do you think is the Court’s
justification for protecting certain classes of people more
than others?

After-Reading Critical Connections for Daniels v. Clegg

1. Discuss what the Court’s reasons might be for holding

 the plaintiff to a standard of care lower than a man.
2. The Court states that the defendant “had no right to
expect” the same level of care as a man would have
exercised. Does the gender of the potential victim
determine the level of care a person should practice? Age?
Race? Disabilities?
3. Would the Court’s reasoning apply to a female driver
today? Why or why not? Are there any present-day
scenarios in which a court could assume a lesser standard
of care from a woman?

Teaching Note: These cases are very accessible for

students to read and very much model the idea of law as
literature. The elements of fiction can be identified in the
“stories” of these disputes.

LAW AND LITERATURE LESSON IN ACTION WITH

THE FEATURED LITERATURE SELECTION THE
GREAT GATSBY,
BY F. SCOTT FITZGERALD
The Great Gatsby is a novel that takes place in the 1920s, a
time of glamour and excess. Nick Carraway, the narrator, has
moved out west to start a career in bonds. He moves in next
door to the wealthy Jay Gatsby. He reconnects with his cousin
Daisy and her unfaithful husband, Tom. Nick soon learns that
Gatsby and Daisy know each other and witnesses the rekindling
of their relationship. The deceit of this world comes crashing
down when Daisy hits Tom’s lover, Myrtle, with her car and kills
her.
As Nick in The Great Gatsby states,

I couldn’t forgive [Tom] or like him, but I saw that what he

had done was, to him, entirely justified. It was all very
careless and confused. They were careless people, Tom and
Daisy—they smashed up things and creatures and then
 retreated back into their money or their vast carelessness,
or whatever it was that kept them together and let other
people clean up the mess they had made. (180–81)

Nick may think that Daisy’s actions were careless, but does
the law? You have been hired as Daisy Buchanan’s attorney—
one of the “other people” who cleans up her mess. George
Wilson is suing Daisy, claiming that she was negligent in the
accident that killed his wife, Myrtle.
Write a letter to your client explaining the law of negligence
and the case against her in the accident that killed Myrtle. Focus
on the issue of whether Daisy acted as a reasonably prudent
person under the circumstances. Make sure to use the
applicable case law and facts from the novel.
Teaching Note: For more information about negligence,
see nolo.com and search negligence.

A NOTE FROM THE AUTHORS

The “reasonable person” standard is one of the most highly
debated issues in the law because of its application of the
reality of one’s humanity within a particular set of
circumstances. What is reasonable to one person in one setting
may not be to another person in a different setting. It is this
complexity that allows the in-depth study of character issues
and multiple perspectives of the literary pieces in this thematic
unit.
There are no clear answers, which leads to the opportunity
to explore issues within the texts from multiple perspectives
without technically being “right” or “wrong” about any of it. The
application assignment allows students to practice a synthesis
essay not only in a very unique way but also in a very relevant
way. It allows students to make a classic text, The Great Gatsby,
relevant to today. Daisy and Gatsby are not relegated to the
1920s but are present in modern time. Students bring the
characters and their problems to life in their application.
 The issue of reasonable behavior and negligence is an issue
that affects students in their daily lives: Is my behavior
reasonable according to society’s standards? How does my
behavior affect others? How does this apply to events that are
happening in society today? These questions go far beyond the
English language arts (ELA) classroom walls and into moral
dilemmas and conversations that students face throughout their
lives.
Asking students to view a situation from the vantage of
someone other than themselves provides the opportunity to
explore the viewpoints and frames of reference of others.
Students who may be used to focusing only on themselves must
step out of that boundary and explore the sometimes
uncomfortable mind-set of a character completely unlike
themselves. It is a stretch for some but a valuable challenge in
understanding that the world is about more than one individual.
 Chapter 10
Why’d You Do It?
“You’re convinced there was nothing important here?” he
asked the sheriff. “Nothing that would point to any motive?”

- “A Jury of Her Peers”

A time-traveling, homicidal teenager gets a new
understanding of “walking in someone else’s shoes.” A meek
man plots a murder to save his job. An unprovoked killing elicits
no remorse. A wife frames her husband for her own murder. A
bullied teenager takes revenge with violence. A boy tries to
steal a purse and ends up with something much more valuable.
A big-game hunter, who finds himself on an isolated island,
becomes the hunted.
An American author investigates the shocking murder that
disrupts a quiet Kansas town. A journalist explores whether
young love really did lead to the strangulation of a high school
senior. A Renaissance writer characterizes what makes a strong
leader. A conservative commentator discusses people’s apathy.
These stories all examine a person’s motivations. The study
of literature includes examining characters’ traits and why a
character acts a certain way. In the examination of motivations,
the literature intersects with the law. What motivations do
people have to commit criminal acts?
We read Patricia Cornwell and Michael Connelly; we watch
Law and Order and Criminal Minds; we are fascinated by the
hours we spend tuned into the trials of Jodi Arias and Casey
Anthony. Why? Because we wonder how a person could murder
his wife. We want to make sense of a mother killing her child.
We are transfixed by a teenager committing the mass killing of
his peers. Exploring case law gives students a new perspective
in the analysis of characters.

WHY’D YOU DO IT? ESSENTIAL QUESTIONS FOR

THIS THEME
1. How do facets of identity such as race, gender,
sexuality, and social class affect a person’s motives?
2. How should a person’s situation and motive affect his or
her culpability, for example, is the person who steals life-
saving medicine for his or her sick child less guilty than the
person who steals a television?
3. What is human nature? What influences that human
nature?

SUGGESTED LITERATURE SELECTIONS

Fiction

Flight, by Sherman Alexie: This novel is told from the

perspective of the narrator, a Native American teenager
named Zits. Zits’s time travels put him in different bodies as
he experiences a variety of perspectives during a variety of
time periods.
What this text has to offer: An opportunity to discuss
how a person cannot be easily defined as all good or all evil.
Rather, one’s motives are complex. The experiences that
Zits has as different people throughout history allows a
discussion of the nuances of people’s choices. What shapes
those choices? How does the environment influence those
choices?
“The Catbird Seat,” by James Thurber: In this short
story, Martin, a meek and cautious employee at F&S, is
threatened by a new hire, Mrs. Ulgine Barrows. Mrs. Barrows
has been hired to make the company more efficient and has
done so for other departments. When it seems time for Mrs.
Barrows to downsize Mr. Martin’s department, he decides to
murder her. In an ironic twist, Martin adjusts his plan and
“eliminates” the problem in a different way.
What this text has to offer: An opportunity to discuss the
contrast between Martin’s character and his plot to commit
murder. What could move Martin to such actions, and why is
he so protective over his current status?
 The Stranger, by Albert Camus: In this novel, the main
character, Meursault, shoots a person on the beach. The
murder is unprovoked and seemingly without reason. The
trial focuses on Meursault’s lack of grief at his recent
mother’s funeral and his overall lack of morality and feeling.
Ultimately, he determines that life has no purpose.
What this text has to offer: An opportunity to discuss
how the law tries to provide reasoning and rationality for the
inexplicable. Why do we, as a society, need to understand a
person’s motives? How does the law provide society with a
way to explain crime?
Gone Girl, by Gillian Flynn: This novel explores the
difficult marriage of Nick and Amy Dunne as Amy frames
Nick for her “disappearance.” When Amy returns, Nick
decides to stay with her. (MA)
What this text has to offer: The characters, Amy and
Nick, offer an interesting discussion of characters’
motivations.
19 Minutes, by Jodi Picoult: After suffering years of
bullying, Peter Houghton commits an act of violence that
changes the people in the small town of Sterling, New
Hampshire. The aftermath of a school shooting is explored
in this novel.
What this text has to offer: The novel centers around
the pressure to conform to society’s expectations but also
reveals the inner struggles that the characters face. These
themes provide an opportunity to discuss how we know that
we know someone. What motivates people to act in a
certain way? What are the forces that play into people’s
decisions?
“Thank you, Ma’am,” by Langston Hughes: When a boy
named Roger tries to steal Mrs. Luella Bates Washington’s
purse, she has an unlikely reaction. She takes him to her
apartment and shares a meal with him.
What this text has to offer: This short story offers the
opportunity to discuss characters’ motivations to commit a
crime. Mrs. Washington asks Roger why he tried to steal her
 purse. Why do Roger’s motives change? Further, what are
Mrs. Washington’s motivations?
“The Most Dangerous Game,” by Richard Connell: In this
short story, a big-game hunter, Sanger Rainsford, falls off
his boat and finds himself on an isolated island. A different
kind of hunt is in store for him. After giving him a head start,
General Zaroff hunts Rainsford as a different type of
“game.”
What this text has to offer: This text offers the
opportunity to explore why General Zaroff is compelled to
set up “hunts” of humans. But, additionally, it provides the
opportunity to discuss Rainsford’s behavior and motivations.
Why does Rainsford sleep so soundly after killing Zaroff?

Nonfiction

In Cold Blood, by Truman Capote: Capote writes about

the 1959 murders of members of the Clutter family—a
farmer, his wife, and two of their four children. The murders,
in Holcomb, Kansas, disrupt the life of those in this quiet,
small town.
What this text has to offer: Capote tries to understand
what would move Perry Smith and Dick Hickock to commit
this heinous crime. The insights into these murderers’
childhoods and the contrast between the two criminals
provide the opportunity to discuss what makes a cold-
blooded murder.
Serial, Season 1 (Fall 2014): This podcast traces a
journalist’s investigation into the murder of Hae Min Lee in
1999 and the first-degree murder conviction of Adnan Syed.
What this text has to offer: The narrator, Sarah Koenig,
states how she cannot understand how someone who looks
like Adnan could commit this crime. This exploration of the
crime allows students an opportunity to hear the interviews
of different parties involved in the case and discuss their
motives. In addition, whose story do the students believe?
Why?
 “The Morals of the Prince,” by Niccolò Machiavelli: This
essay explores Machiavelli’s philosophy about how the
virtues that usually are praised in a prince could ultimately
cause a prince great harm. Therefore, those characteristics
that are normally viewed as vices are the ones that allow a
prince to reign.
What this text has to offer: An opportunity to discuss the
definition of “Machiavellianism.” Is a person all evil or all
good? What makes up human nature? Are certain decisions
moral in one setting but immoral in another? Can one make
an amoral decision?
“Why We Don’t Complain,” by William F. Buckley Jr.: In
this essay, Buckley re-creates experiences that he has had,
commenting on people’s reluctance to complain. He
compares this “passive compliance” that Americans have
developed to their failure to care about politics.
What this text has to offer: An opportunity to discuss
why people do not act or speak up. What motivates people
to be heard?

APPLICABLE CASE LAW

Teaching Note: A motive is the reason why a person

does something and is not an element of a crime. Whereas
intention or mens rea is how a person wants to do something
and what a person wants done. The mens rea is an element
of many crimes; one must have a guilty mind in order to be
guilty of a crime. But how does motive play into one’s
culpability?

Case #1: State v. Norman, 324 N.C. 253, 378

S.E.2d 8, 1989 N.C. 158 (1988)

Facts of the Case

The defendant and Mr. Norman (the victim) had been

married for 25 years, and the defendant had endured Norman’s
physical abuse for the past 20 years of their marriage. Norman
often threatened to kill the defendant. On the day of Norman’s
death, Norman had beat the defendant all day long. In the late
afternoon, Norman took a nap. The defendant went to her
mother’s house, where she found a gun. She returned home and
shot Norman. Two experts testified about the torture that the
defendant endured.

Question

Did the victim’s lack of aggression at the moment that the

homicide occurred preclude the defendant from asserting self-
defense?

Conclusion

Yes, the Court stated that the defendant could not use self-
defense because there was not a reasonable fear of imminent
death or bodily harm.

Before-Reading Activities for State v. Norman

1. Discuss the issue of domestic abuse and how our culture

is reacting to the problem. Listen to and read the lyrics of
the song “By the Grace of God,” by Katy Perry. The NFL, as a
part of its “No More” campaign, released and showed a PSA
about domestic abuse during the 2015 Super Bowl. What
are the students’ reactions? What are the stereotypes about
victims and abusers?
2. Have the students debate the question, Is murder ever
morally justifiable?

Text-Dependent Questions for State v. Norman

1. How do the experts define “battered wife syndrome”?

 Why do the experts believe that the defendant suffers from
such a condition? How would that excuse her from the act of
shooting her husband while he slept?
2. What are the elements of a self-defense? How does the
Court define “reasonable”?
3. What is the difference between a perfect right of self-
defense and an imperfect right of self-defense? Why did the
trial court not instruct on either right of self-defense?
4. Why, in the Court’s opinion, was the error harmless
even if the trial court erred in not instructing the jury in an
imperfect right of self-defense?
5. How does the Court define “imminent”? How does the
Court justify that the defendant was not in imminent
danger? How does the Court apply the facts of State v. Mize
to this case?
6. In order for the Court to find that the defendant had the
right to the defense of self-defense, how does the Court say
the definition of “imminent” would have to change? Do you
agree that the threat to the defendant was not “imminent”?

After-Reading Critical Connections for State v. Norman

1. A more recent case is that of Barbara Sheehan. Read

the New York Times article “An Abused Wife? Or an
Executioner?” by Dan Bilefsky (September 25, 2011).
Discuss how Sheehan is more or less culpable than Judy
Norman, the defendant in this case.
2. What is the psychology behind battered wife syndrome?
Why do women stay with their abusers?
3. Debate the Court’s decision. Do you agree or disagree
that the defendant was not facing an imminent threat of
great bodily harm?

Case #2: State v. Gallegos, 104 N.M. 247, 719 P.2d

1268 (N.M. Ct. App. 1986)
Facts of the Case

The defendant was married to George Gallegos. The

marriage was a violent relationship, including physical and
sexual abuse. On the day defendant killed Gallegos, she
suffered abuse and was threatened with a gun. Gallegos called
the defendant into the bedroom. He was lying on the bed. The
defendant shot him and then stabbed him numerous times.

Question

Should the defendant be able to present a defense of self-

defense?

Conclusion

The defendant should be allowed to present the defense of

self-defense because the defendant’s perception of an
“immediate” danger was valid. The Court stated that the “fear
present in this case also was prompted by more than a history
of abuse. Based on the brutality which the defendant testified
she had experienced that day, George’s anger, and her
knowledge of what had happened to her in similar
circumstances, George’s calling her into the bedroom could
provide the requisite of immediacy of danger” (719 P.2d at
1273).

Before-Reading Activities for State v. Gallegos

1. The defendant in this case is appealing her conviction of

voluntary manslaughter, often referred to as a killing “in the
heat of passion.” The Washington Post article “The ‘Heat of
Passion’ Voluntary Manslaughter Theory,” by Eugene Volokh
(November 20, 2014), provides an interesting discussion
about how motive is linked to sentencing. Discuss whether
the different motivations make one less culpable.
2. The following are a list of motivations for murder. Rank
the motivations for murder based on culpability: killing an
enemy soldier in wartime; killing a spouse’s lover upon
finding the spouse in an act of adultery; killing a spouse for
insurance money; killing a terminally ill, dying relative in
order to ease his or her pain; killing a stranger in order to
protect your child; killing someone during a bar fight; killing
an unarmed intruder in your home.

Text-Dependent Questions for State v. Gallegos

1. What are the three elements of a valid self-defense

claim that the Court describes? When can a defendant
present such a defense?
2. How does the defendant in this case meet each of these
elements of self-defense?
3. What are the connotations to the term battered wife
syndrome? Why would the Court think the term might be
“prejudicial or inflammatory” to the jury (719 P.2d at 1273)?
What preconceived ideas come with the term syndrome?
Where does this label place the blame?

After-Reading Critical Connections for State v. Gallegos

1. How is this case different from State v. Norman? Would

the defendant in Norman meet the elements of a self-
defense claim under this court’s description?
2. How has our society dealt with violence against women?
How do our culture’s stereotypes about women shape our
definition of the issue?
3. Recently, “stand your ground” laws (one does not have
a duty to retreat when faced with a reasonably perceived
threat) have come under attack. See the U.S. News & World
Report “Debate Club” and search for “Are ‘Stand Your
Ground Laws’ a Good Idea?”

Case #3: Wisconsin v. Mitchell, 508 U.S. 476

(1993)

Facts of the Case

On the evening of October 7, 1989, a group of young black

men and boys, including Mitchell, attacked a young white boy.
The group beat him severely and stole his tennis shoes. The
victim was rendered unconscious and remained in a coma for
four days. Because the victim was chosen based on his race and
in accordance with Wisconsin statute S939.645(1)(b), Mitchell’s
sentence was increased. Mitchell challenged the
constitutionality of the penalty enhancement on the grounds of
the First Amendment.

Question

Did the increase in Mitchell’s sentence, based on his bigoted

motives, violate his First Amendment rights?

Conclusion

No, Mitchell’s enhanced penalty did not violate his First

Amendment rights. The Court states that motives are often
considered in sentencing and that minimum sentences could be
imposed if the accused was found to be acting with good
motives. The punishment was upheld because (1) consequences
of racially motivated crimes tend to be more severe for the
community, and (2) it did not have a chilling effect on the
freedom of speech.

Before-Reading Activities for Wisconsin v. Mitchell

1. If a person murders another person based on the

victim’s religion, race, or sexual orientation, should the
murderer be punished more severely? How does the Court
determine if the victim’s religion, race, or sexual orientation
 was part of the murderer’s motivation?
2. In R.A.V. v. St. Paul, 505 U.S. 377 (1992), the Supreme
Court struck down an ordinance that punished a group of
white people who burned a cross in the yard of a black
family because the ordinance was concerned with the
content of the speech. Why is it important to protect speech
with which the majority of people disagree?
3. The New York Times Learning Network provides a lesson
plan titled “Does Motivation Matter? Debating the Legal
Category of Hate Crime.”

Text-Dependent Questions for Wisconsin v. Mitchell

1. Why did the Wisconsin Supreme Court find that the

penalty enhancement statute was unconstitutional?
2. Do you agree with the Wisconsin legislature that bias-
motivated offenses should carry harsher penalties? Why or
why not? What is the Court’s justification for harsher
penalties?
3. How does the Court differentiate between this law and
the ordinance in R.A.V. v. St. Paul?
4. The Court states that enhancement-bias-inspired
conduct is “thought to inflict greater individual and societal
harm” (508 U.S. at 47). How does the motive of the crime
inflict more harm?
5. What is the “chilling effect”? Why does the Court state
that this law will not have a chilling effect? Why is
preventing a chilling effect an important concern of the
Court?

After-Reading Critical Connections for Wisconsin v.

Mitchell

1. James Jacobs, in his republished article “Should Hate Be

a Crime?” (National Affairs, no. 113 [Fall 2013]), stated:

Reducing prejudice and hate must be a high priority for

 American society, but more criminal law is the wrong
tool. We should exhaust all other strategies of social
education and institution building before pinning our
hopes on the criminal law, which has, at best, a very
unimpressive record in ameliorating social problems.

Do you agree with Jacobs? How does society deal with

social problems? Do hate crimes address this social issue?
2. Wisconsin v. Mitchell was decided in 1993. How has the
problem of hate crimes changed since then? What events
have happened that have changed this issue? Has hate
crime legislation improved this issue?
3. The FBI releases hate crime statistics on the
www.fbi.gov website. Examine these statistics. What are
your observations about hate crimes?

LAW AND LITERATURE LESSON IN ACTION WITH

THE FEATURED LITERATURE SELECTION “A JURY
OF HER PEERS,”
BY SUSAN GLASPELL
In “A Jury of Her Peers,” two women take the law into their own
hands and hide evidence of Minnie Wright’s motive to kill her
husband. The two women, Mrs. Hale and Mrs. Peters, find
justification in Mrs. Wright’s act of murder, and, thus, act as a
“jury of her peers.”
Although motive, the reason why a person committed a
crime, does not have to be proven in order to convict a
defendant of murder, Mr. Henderson, the county attorney,
believes that the jury is more likely to convict Mrs. Wright if
there is a reason why she did it. “Some definite thing—
something to show. Something to make a story about. A thing
that would connect up with this clumsy way of doing it” (100).
Mr. Henderson believes that a motive will allow a jury to
make sense of Mrs. Wright’s actions and, therefore, allow the
jury to find her guilty. But can a motive provide Mrs. Wright with
a possible defense, a legal justification for killing her husband?
 Teaching Note: An activity that may help to set up this
assignment is philosophical chairs. Prior to reading the story,
use the following questions to conduct philosophical chairs.
After reading the story, use the same questions, but the
students have to pretend that they are Mrs. Wright.
Therefore, their support for their stance would be evidence
from the story.

All acts are motivated by self-interest.

Murder is always wrong.
A good person can be kill another human being.
Acting in self-defense can only occur when a person is
experiencing an imminent threat.
Men and women are motivated by different things.
A crime should always be punished.

In the early 20th century, when the story takes place, a

defense of battered woman syndrome would not have been
available to Minnie Wright. Mrs. Hale and Mrs. Peters find
justification for Mrs. Wright’s killing her husband, but should a
jury?
Pretend that Mr. Wright’s murder occurred in the present
day. Students will either represent the state or Minnie Wright.
Using the applicable case law, State v. Norman and State v.
Gallegos, regarding battered woman syndrome as a defense to
murder, develop a closing argument for your side that presents
to the jury why Minnie Wright’s killing of her husband was a
justifiable homicide or why it was not.
Make sure to consider the following from the story:

How Minnie Wright changed throughout the years

Evidence of the crime
Evidence of motive

Preparing a Closing Argument

 Watch the clip from the movie A Time to Kill in which the
attorney, Jake Brigance, delivers the closing argument to
the jury. Note how Brigance creates a story for the jury. (MA)
What to include:
Your claim might be that Minnie Wright should be
found guilty because she did not act in self-defense or
that Minnie Wright should be found not guilty because
she suffers from battered wife syndrome and acted in
self-defense.
Emphasize the details and evidence that support
your theory.
Refute the opponent’s argument.
Explain the case law from Norman and Gallegos and
show how one case supports your side and how the
other case is distinguished from Minnie Wright’s case.
Think about the clip from A Time to Kill. What is the
story of that case? What is the moral decision that the
jury must make?

A NOTE FROM THE AUTHORS

As Jimmy Stewart, playing defense attorney Paul Biegler in the
movie Anatomy of a Murder, stated, “As a lawyer, I’ve had to
learn that people aren’t just good or just bad. People are many
things.”
People, including students, are fascinated with
understanding the “why” behind heinous acts. Looking at
motive in crimes and looking at characters’ motives in literature
is a natural connection. Giving students an opportunity to make
text-to-world connections and to explore their understanding of
the world around them requires them to construct new meaning
based on their prior beliefs.
What motivates me? Under what conditions would I commit
a crime? How do I define my own morality? When have I
sacrificed that morality and why? What shapes my human
nature? The discussion of these questions not only makes
students see the literature as relevant and interesting but allows
them to explore their own morality, beliefs, and human nature.
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 Index

1
12 Angry Men, 1
19 Minutes, 1
1984, 1.1-1.2

“
“Accident”, 1

A
Aeschylus, 1
Alexie, Sherman, 1 , 2

T
The American Experience, 1 , 2

A
American Psychological Association, 1

“
“The Amish”, 1

A
Antigone, 1 , 2.1-2.2
Arizona v. United States, 1.1-1.2
Ascher, Barbara Lazear, 1
Avi, 1

T
The Awakening, 1

B
Banks, Russell, 1
Barthelme, Donald, 1
Batson v. Kentucky, 1.1-1.2 , 2

T
The Bell Jar, 1

B
Bethel School Dist. No. 403 v. Fraser, 1.1-1.2
Billy Budd, 1 , 2.1-2.2
Black and White, 1

T
The Board of Education, 1
The Book Thief, 1

B
Bradbury, Ray, 1
Breunig v. American Family Ins. Co., 1.1-1.2

“
“A Brilliant Madness”, 1

B
Buckley, William F., Jr., 1
Burgess, Anthony, 1

“
“By the Grace of God”, 1

C
Camus, Albert, 1
Capote, Truman, 1 , 2

“
“The Case for Torture”, 1
“The Catbird Seat”, 1

C
Chief Seattle, 1
Chopin, Kate, 1

“
“Civil Disobedience”, 1 , 2

A
A Clockwork Orange, 1

C
Collins, Suzanne, 1
Common Core State Standards, 1.1-1.2
Connell, Richard, 1

T
The Count of Monte Cristo, 1

C
Crime and Punishment, 1

“
“A Crime of Insanity”, 1

T
The Crucible, 1

D
Daniels v. Clegg, 1.1-1.2
Declaration of Independence, 1 , 2
Dostoevsky, Fyodor, 1
Douglass, Frederick, 1
Dreams from My Father: A Story of Race and Inheritance, 1
Dumas, Alexandre, 1
E
Eggers, Dave, 1
Eleason v. Western Casualty and Surety Co., 1
Emancipation Proclamation, 1
Engel v. Vitale, 1.1-1.2
Erdrich, Louise, 1

F
Fahrenheit 451, 1
Fast Food Nation, 1
First Amendment Center, 1
Fitzgerald, F. Scott, 1.1-1.2 , 2
Flight, 1
Flynn, Gillian, 1
Ford v. Wainwright, 1.1-1.2
Fortney, Ellen, 1
Frontline, 1

G
Garrison, William Lloyd, 1
Gemmette, Elizabeth Villiers, 1
Gilman, Charlotte Perkins, 1
Girl, Interrupted, 1
Glaspell, Susan, 1

“
“God Sees the Truth But Waits”, 1

G
Golding, William, 1
Gone Girl, 1

T
The Great Gatsby, 1.1-1.2 , 2
G
Gregg v. Georgia, 1.1-1.2
Guest, Judith, 1

“
“A Hanging”, 1

H
Hansberry, Lorraine, 1

“
“Harrison Bergeron”, 1 , 2
“How It Feels to Be Colored Me”, 1
“The Humanitarian Theory of Punishment”, 1

T
The Hunger Games, 1

H
Hughes, Langston, 1 , 2
Hurston Zora Neale, 1

“
“I, Too”, 1

I
I Am Malala: The Girl Who Stood Up for Education and Was Shot
by the Taliban, 1

“
“I Have a Dream”, 1

T
The Immortal Life of Henrietta Lacks, 1
I
In Cold Blood, 1 , 2

“
“In Defense of Prejudice”, 1
“Independent Lens Knocking”, 1
“Indian Education”, 1

I
Indiana v. Edwards, 1.1-1.2
Ingraham v. Wright, 1.1-1.2
Inherit the Wind, 1 , 2

J
Jackson, Shirley, 1
J.E.B. v. Alabama, 1.1-1.2
Jefferson, Thomas, 1

“
“A Jury of Her Peers”, 1 , 2.1-2.2

K
Kafka, Franz, 1
Kaysen, Susanna, 1
Kesey, Ken, 1
King, Martin Luther, Jr., 1 , 2

L
Lake Shore and Mich. Southern R.R. Co. v. Miller, 1
Lawrence, Jerome, and Lee, Robert Edwin, 1 , 2
Ledwon, Lenora, 1.1-1.2
Lee, Harper, 1.1-1.2

“
“Letter from Birmingham Jail”, 1
“Letter to President Pierce, 1855”, 1

L
Levin, Michael, 1
Lewis, C. S., 1
Lincoln, Abraham, 1

T
The Lone Ranger and Tonto Fistfight in Heaven, 1

L
Lord of the Flies, 1

“
“The Lottery”, 1

L
Lumet, Sidney, 1

M
Machiavelli, Niccoló, 1
Marbles: Mania, Depression, Michelangelo and Me, 1
Melville, Herman, 1
Miller, Arthur, 1
Mississippi Band of Choctaw Indians v. Holyfield, 1.1-1.2

“
“The Morals of the Prince”, 1

M
Morse v. Frederick, 1.1-1.2

“
“The Most Dangerous Game”, 1
M
Mourning Becomes Electra, 1
My Sister’s Keeper, 1

N
National Center for Educational Statistics, 1
Native Son, 1

“
“No Compromise with Slavery”, 1

N
Nothing but the Truth, 1

O
Obama, Barack, 1
Of Mice and Men, 1

“
“On Compassion”, 1
“On the Universal Declaration of Human Rights”, 1

O
One Flew Over the Cuckoo’s Nest, 1 , 2

“
“One Violent Crime”, 1

O
O’Neill, Eugene, 1
Ordinary People, 1

T
The Oresteia, 1
O
Orwell, George, 1 , 2.1-2.2

P
Payne v. Tennessee, 1.1-1.2
Perry, Katy, 1
Picoult, Jodi, 1 , 2
Plath, Sylvia, 1
Pledge of Allegiance, 1 , 2 , 3 , 4
Poe, Edgar Allen, 1
Powers v. Ohio, 1.1-1.2

A
A Raisin in the Sun, 1

R
Raush, Jonathan, 1
R.A.V. v. St. Paul, 1 , 2

T
The Reader, 1

R
Reid v. Covert, 1.1-1.2
Reynolds v. United States, 1.1-1.2
Riggins v. Nevada, 1.1-1.2
Roberts v. Ring, 1.1-1.2

T
The Round House, 1 , 2.1-2.2

R
Roosevelt, Eleanor, 1

“
“Rumspringa: Amish Teen Venture into Modern Vices”, 1

S
Schlink, Bernhard, 1
Schlosser, Eric, 1
Serial, Season 1, 1
Shapiro, Bruce, 1
Skloot, Rebecca, 1

“
“Some of Us Had Been Threatening Our Friend Colby”, 1

S
Sophocles, 1 , 2.1-2.2
Sell v. United States, 1
State v. Gallegos, 1.1-1.2 , 2 , 3
State v. Mize, 1
State v. Norman, 1.1-1.2 , 2 , 3

T
The Stranger, 1

S
Strauder v. West Virginia, 1 , 2 , 3
Steinbeck, John, 1

T
The Sweet Hereafter, 1

“
“The Tell-Tale Heart”, 1
“Thank You, Ma’am”, 1

T
Thoreau, Henry David, 1 , 2
Thurber, James, 1
Tinker v. Des Moines Independent School District, 1.1-1.2 , 2 ,
3.1-3.2
To Kill a Mockingbird, 1.1-1.2
Tolstoy, Leo, 1
The Trial, 1

“
“A Vindication of the Rights of Woman”, 1

V
Volponi, Paul, 1
Vonnegut, Kurt, 1 , 2

W
West Virginia State Board of Education v. Barnette, 1.1-1.2

“
“What to the Slave Is the 4th of July”, 1
“Why Don’t We Complain”, 1

W
Wisconsin v. Mitchell, 1.1-1.2
Wisconsin v. Yoder, 1 , 2 , 3.1-3.2
Wollstonecraft, Mary, 1
Wright, Richard, 1

“
“The Yellow Wallpaper”, 1 , 2.1-2.2

Y
Yousafzai, Malala, 1

Z
Zusak, Markus, 1
 About the Authors

Gretchen Oltman, JD, PhD, has spent over a decade in

education as a high school English teacher and university
administrator. Oltman earned a Bachelor of Arts in English from
the University of Nebraska–Lincoln, a Master of Arts in Teaching
from the University of Louisville, a Juris Doctorate from the
University of Nebraska College of Law, and a PhD in educational
studies from the University of Nebraska. She is a licensed
attorney in the state of Nebraska. While teaching high school
English, she developed Law and Literature as an elective course
for juniors and seniors. Oltman currently serves as an assistant
professor in the Interdisciplinary Leadership Doctorate Program
and as program director for the Master’s in Leadership Program.
She was awarded the 2010 Dr. Ted Sizer High School Level
Dissertation of the Year by the National Association of
Secondary School Principals. Her first book, Violence in Student
Writing: A Guide for School Administrators, was published in
2013. She regularly presents at national conferences, including
those hosted by the National Council of Teachers of English
(NCTE) and the Education Law Association (ELA).

Johnna Graff, JD, earned a Bachelor of Arts in English from

Nebraska Wesleyan University and a Juris Doctorate with
distinction from the University of Nebraska College of Law. She
is a licensed attorney in the state of Nebraska. Graff currently
serves as the English department chair at Lincoln Southeast
High School in Lincoln, Nebraska. Her teaching assignment
includes Law and Literature. In addition, she is an adjunct
instructor at Nebraska Wesleyan University. She is a member of
the National Council of Teachers of English (NCTE) and the
Nebraska Bar Association. She has presented at the NCTE
national convention. Graff received the 2015 NCTE Conference
on English Leadership (CEL) Emerging Leadership Fellowship.
 Cynthia Maddux, JD, earned a Bachelor of Arts in English
from the University of Nebraska–Lincoln and a Juris Doctorate
from the University of Nebraska College of Law. After spending
nearly seven years as a practicing attorney and nonprofit
executive director, she received her postbaccalaureate teaching
certification and began teaching high school English in 2000.
She is currently a teacher and the gifted facilitator at Lincoln
North Star High School in Lincoln, Nebraska, and also serves as
an adjunct instructor at Nebraska Wesleyan University. Over the
past 15 years, she has regularly taught Law and Literature at
both the secondary and collegiate levels. Maddux is a member
of the National Council of Teachers of English (NCTE) and has
presented several times at the NCTE annual convention, as well
as regularly presenting staff development sessions for Lincoln
Public Schools.