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TABLE OF CONTENTS
Mock Trial Competition Manual
Table of Contents
Copyright
A Note on Civility
Introduction
Competition Terms
Case Introduction
Rules of Competition
Judging and Scoring Guidelines
Procedural Rules of Competition
Simplified Ohio Rules of Evidence
Examples of Common Objections and Trial Procedures
Scoring Error Notification
Complaint Form
Lori Urogdy-Eiler Award Nomination Form
Page
1
2
3
4
5
6
8
12
16
23
30
37
38
39
2014 MOCK TRIAL CASE: Phillips School District v. Jesse Springfield et al.
40
Special Instructions
Legal Documents
Legal Briefs
Witness Statements
Jaime Gomez
Casey Mancuso
Lee Martin
Jesse Springfield
Alex Chen
Pat Jacobs
Exhibit A
Exhibit B
Exhibit C
Exhibit D
Section from U.S. Constitution
Case Law
41
42
43
Time Keeper Manual
Time Cards
Sample Score Sheet
Acknowledgements
181
186
191
192
92
103
112
122
131
140
149
152
153
154
155
156
“Putting on Mock Trials,” published by the American Bar Association Division for Public Education,
2002. Copyright © 1990 American Bar Association, Reprinted with permission.
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Copyright ©2013
Ohio Center for Law-Related Education
1700 Lake Shore Drive P.O. Box 16562, Columbus, OH 43216-6562
614-485-3510 or 877-485-3510 (toll-free)
www.oclre.org
This publication was funded by the Supreme Court of Ohio. However, the opinions expressed in this
publication do not necessarily reflect the position of the Court, and no endorsement of the Court
should be inferred.
The Ohio Mock Trial program is made possible in part by a grant from the
Ohio State Bar Foundation
The views expressed herein do not necessarily represent those of the Ohio State Bar Foundation.
The purchaser of this copy is hereby authorized to reproduce or make use of these materials only for
non-profit educational use. Use of these materials or reproduction for sale or competition outside the
classroom is prohibited without the written permission of licensing rights from the Ohio Center for
Law-Related Education
2
Civility
You may have seen trials portrayed in the movies and TV shows in which the lawyers show, or
barely conceal, contempt for one another and even towards the judge. This makes for good drama, but
real trials are rarely conducted in this manner, and should never be.
The general duty of an attorney is set forth in the Ohio Rules of Professional Conduct, which
are adopted by the Supreme Court of Ohio and govern the conduct of all Ohio attorneys. The
Preamble to the Rules reads, in part, as follows:
As an officer of the court, a lawyer not only represents clients but has a special responsibility for the
quality of justice. * * * A lawyer should use the law’s procedures only for legitimate purposes and not to
harass or intimidate others. A lawyer should demonstrate respect for the legal system and for those who
serve it, including judges, other lawyers, and public officials. *** In addition, a lawyer should further the
public’s understanding of and confidence in the rule of law and the legal system because legal institutions
in a constitutional democracy depend on popular participation and support to maintain their authority.
Specific provisions of the Ohio Rules of Professional Conduct require an attorney to: be
punctual in fulfilling professional commitments, avoid offensive tactics, and treat all persons involved in
the legal process with courtesy and consideration [Rule 1.2(a)]; be honest in all dealings with courts and
other tribunals before which the attorney appears [Rules 3.3 and 3.5]; refrain from asking questions that
have no purpose other than to embarrass or harass a witness or other person [Rule 4.4(a)]; refrain from
engaging in undignified or discourteous conduct that is degrading to a tribunal [Rule 3.5(a)(6)]; and
avoid conduct involving dishonesty, fraud, deceit, or misrepresentation or conduct that is prejudicial to
the administration of justice [Rule 8.4(c) and (d)].
Students who participate as attorneys in the Ohio High School Mock Trial Program should
strive to follow these principles of civility while representing the interests of their clients, and can expect
the scoring judges to be favorably impressed as a result. The failure to maintain civility can be expected
to have a negative impact on the scoring judges.
With the rare exception where a student is portraying a witness who might genuinely require
some departure from the high standards of civility set for the legal profession, it will usually be more
effective for a witness to respond courteously to the attorneys’ questions, not to interrupt the attorney,
and to wait while an attorney interposes an objection to the question just put to the witness. It is never a
good idea, no matter how obstreperous the character being portrayed, for a witness to show disrespect
to the court.
As for the attorneys, not only is civility expected, it can be surprisingly effective. Being civil
does not mean being a push-over. Stridency often distracts from the inherent forcefulness of the
argument being made. Cross-examination does not have to be badgering to be thorough and effective
to the point where the witness’s testimony is completely discredited; indeed, a badgering tone may only
engender sympathy for the witness.
It is expected that advisors, coaches, and parents will, at all times, model civil behavior towards
and respect for the court and members and supporters of the opposing team
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THE OHIO CENTER FOR LAW-RELATED EDUCATION
2014 OHIO MOCK TRIAL
COMPETITION MANUAL
Introduction
Ohio Mock Trial provides an opportunity for high school students to participate in an academic
competition. The Ohio Mock Trial Competition is designed to foster a better understanding of the
American democratic legal system and to encourage development of analytical and communication
skills. In moving from the classroom to the courtroom, high school students add an important
dimension to their learning experience in citizenship education. Students develop an appreciation for
our justice system and the role of laws in our society. Through first-hand experience, the Mock Trial
Competition can teach students about their rights and responsibilities under the Constitution. The
Mock Trial experience prepares students for possible future involvement as parties, witnesses and
jurors in trials; familiarizes students with the rules and procedures involved in litigation and the roles
and responsibilities of judges and attorneys. The Mock Trial Competition also develops students’
critical thinking skills, poise and public speaking ability. By working in partnership with the legal
community, teachers and students learn how our legal system works and learn important democratic
principles reflected in and protected by our justice system.
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COMPETITION TERMS
The following list presents important terms to know to participate in the Ohio Mock Trial
Competition. A glossary of legal terminology can be found at www.oclre.org.
Case Introduction: A narrative setting forth the facts of the case; it may not be used for purposes of
impeachment during the trial.
Debriefing: A discussion by the judicial panelists of the teams’ and individual performances.
Deliberations: A consideration of team performances by the judicial panel, which determines the
results of the trial.
District Competition: The first round of competition run by volunteer district coordinators in which
each team participates in two trials, one as plaintiff, and one as the defense. The district winners (teams
who have won BOTH trials) advance to the regional competition.
Judicial Panelist: An attorney, judge, or magistrate who volunteers to evaluate teams participating in the
competition.
Legal Advisor: An attorney, or judge who volunteers to coach teams participating in the competition.
Pretrial Conference: A brief meeting of judicial panelists, legal advisors, teachers and student attorneys
before each trial to address questions and unresolved issues.
Regional Competition: The second round of competition run by volunteer regional coordinators in
which each team that advances from the district competition will participate in two trials, one as
plaintiff, and one as the defense. The regional winners (teams that have won BOTH trials) advance to
the state competition.
State Competition: Rounds of competition take place in Columbus. The teams that won BOTH
regional trials compete with teams from across the state. Teams are guaranteed one trial. Winning
teams (see exception page 8, section I, letter A) keep advancing until two teams remain to compete in the
Championship Round.
Simplified Ohio Rules of Evidence: Rules regarding the admission and exclusion of evidence.
Team: A group of 5-11 students from a school are called upon to present both the plaintiff and
defense sides of the Mock Trial case using students as attorneys, witnesses and bailiff/timekeeper.
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CASE INTRODUCTION
The Ohio Center for Law-Related Education presents its 31st annual Ohio Mock Trial case:
Phillips School District v. Jesse Springfield et al. In this year’s case, Phillips High School agrees to
license naming rights to its field to a large corporation. Students then organize to protest this action
both in school and on the field itself. The school district responds by installing security cameras and
searching the lockers of the students involved as well as filing an action to remove the students from
the field. The students claim the school district has violated their First and Fourth Amendment rights.
Phillips High School is the Plaintiff in this case. The Plaintiff will argue that it can prohibit
the students from using school facilities and that the protest activities are not protected speech under
the First Amendment.
The students are the Defense in this case. The Defense will argue the students’ protest
activities and flyers are protected under the First Amendment. Additionally, the students will argue
the school’s searches of student property are a violation of the Fourth Amendment.
Your job is to present the strongest evidence and the best legal arguments that can be offered
on one side or another in the hypothetical factual scenario provided in these case materials. The
attorneys who have prepared the case materials have based this case upon actual court decisions, with
an eye toward framing the facts of this case in a manner that is evenly balanced between the
arguments of the Plaintiff and the Defense. You should not rely on any court decisions or other legal
information beyond that provided to you in these case materials.
The Ohio Center for Law-Related Education and the Case Committee for Phillips School
District v. Jesse Springfield hope you will find this case challenging and thought provoking. It is our
hope that this case will give you a greater understanding of the First and Fourth Amendments to the
United States Constitution.
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It is also our hope that all who participate in the High School Mock Trial competition will
have a great experience. We want to take this opportunity to go over with you a few brief competition
reminders. It is expected that advisors, coaches, and parents will, at all times, model civil behavior
towards and respect for the court and members and supporters of the opposing team. Also, please
remember that the competition coordinators and judges are volunteers who have taken time out of
their schedules to participate in this program. Understand, as it is in authentic trial situations, that
judges may demonstrate different degrees of preparedness and may make rulings at their discretion
that the parties may not always agree or like. We urge the Mock Trial participants to be flexible and
understanding throughout the competition process.
Best wishes and Good Luck!
The 2013-2014 High School Mock Trial Case Committee
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PART ONE
2014 RULES OF COMPETITION
I.
Competition Structure
A.
B.
C.
Competition consists of two trials at the district level, two trials at the regional level and at least
two trials at the state level. OCLRE staff has the option of providing two trials after determining
how many teams will be present at the State Competition. If there are an odd number of teams
present at the district, regional or state competition, a team with an adequate number of team
members will be scheduled to play both Plaintiff and Defense at the same time in order to
create an even number. If after the completion of Trial 1 and Trial 2 at the state competition,
the number of teams advancing is more than 8 or 16, Trial 3 will be used for a Play-in Round to
reduce the number of advancing teams to 8 or 16. Teams participating in the Play-In Round will
be drawn at random from the pool of advancing teams. For example, if 11 teams advance from
Trial 2, then Trial 3 would have 3 matchups with 6 teams and 5 teams will automatically move
on to Trial 4. From the 6 teams that compete in the Play-In Round, the 3 winning teams will
join the 5 teams that automatically advanced, for a total of 8 teams in Trial 4. Play-In Round
participants will be announced the morning of Day 2 at the State Competition. If after the
completion of Trial 1 and Trial 2 at the State Competition, the number of teams advancing is 5,
6, or 7, the number of teams necessary to bring the remaining number of teams to 8 shall be
selected at random from the group of teams with one loss to complete the quarterfinals bracket.
The remaining 8 teams will then proceed with Trial 3 of the state competition. If after the
completion of Trial 1 and Trial 2 at the State Competition the number of teams advancing is 4,
Trial 3 will be held as the semi-final round with the remaining 4 teams. If after the completion
of Trial 1 and Trial 2 at the State Competition the number of teams advancing is 3, 1 team will
be selected at random from the group of teams with one loss to bring the remaining number of
competing teams to 4. If after the completion of Trial 1 and Trial 2 at the State Competition
the number of teams advancing is 2, Trial 3 will be held as the State Final trial. If after the
completion of Trial 1 and Trial 2 at the State Competition the number of teams advancing is 1,
that one advancing team will be named the State Champion and no further trials will be played.
If after the completion of Trial 1 and Trial 2 at the State Competition the number of teams
advancing is 0, 8 teams will be selected at random from the group of teams with one loss to
complete the quarterfinals bracket and Trial 3 will be played with 8 teams.
In the district and regional competitions, each team will participate in two trials and will play
both Plaintiff and Defense. District site assignments will be released on Friday, January 10,
2014. The Center will attempt to provide teams with side playing first information no earlier
than two days before the district, regional and state competition. This information will be sent
by email to team and legal advisors. Be aware that changes can be made to side playing first up
until the start of the trial without notice due to unforeseen circumstances (e.g. the addition or
drop of teams or weather). No side playing first requests will be considered for any reason. The
district/regional coordinator will not under any circumstances shift teams and times on the day
of the competition. Regional and State competition sites and times will be released after the
District Competition. Courtroom assignments will be provided to teams at registration.
Opponents will not be released in advance. At the State Competition, teams will advance in a
single elimination tournament. Winners will play winners and losing teams will not advance (see
exception page 8, section I, letter A). Advancing teams will be matched at random, and to the
greatest extent possible, each side played in the previous trial switched. Scrimmage
arrangements are the responsibility, and at the discretion of, the teacher. Note: Please keep in
mind when scrimmaging with a team in your area, you could meet them again in competition.
If a team has questions on the mock trial case or competition rules only the team and/or legal
advisor may submit questions to the case and competition committees by contacting Todd
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D.
E.
II.
Burch, Mock Trial coordinator, at 877-485-3510 or [email protected]. The question must
include the name and e-mail address of the submitting advisor. The question will be forwarded
to the case or competition committee depending on the nature of the question, and if necessary,
the answer will be posted on an errata sheet which can be found at www.oclre.org. The errata
sheet will be updated every two weeks, beginning Tuesday, October 15, 2013 and ending on
Tuesday, January 21, 2014. The last day to submit a question is Tuesday, January 14, 2014.
After the district competition, score sheets from the district competition will be sent to teams
advancing to the regional competition. Individual team score sheets for all teams from all levels
of competition will be provided no later than one month after the end of the State competition:
March 8, 2014. Scoring errors must be brought to OCLRE’s attention using the included
Scoring Error Notification Form.
The state champion earns the right to represent Ohio in the National High School Mock Trial
Competition, if one is held, and will receive a stipend from the Ohio Center for Law-Related
Education to help defray expenses for national competition. If the state champion team decides
to represent Ohio in the National High School Mock Trial Competition, all state championship
team members MUST be given the option of attending. If a team member is unable to attend
for any reason, a written note must be provided to OCLRE by the student and the principal of
the participating high school before the stipend will be sent. OCLRE understands that the
winning team may need to add members to complete a roster for the national competition, and
team members may be added as needed from the winning school. If team members are added,
they must be confirmed by contacting OCLRE before the stipend will be sent. The winning
team should contact OCLRE following the state competition to receive further information.
Competition Day Logistics
A.
B.
C.
D.
E.
F.
Teachers must report to the registration table to register the team and to turn in an official team
roster. Teams will receive score sheets upon check-in at the district, regional and state
competition. Please fill out your team’s relevant information on ONE score sheet when playing
Plaintiff and TWO score sheets when playing Defense. Upon meeting with the other team you
will exchange score sheets and fill in the needed information before the judges meet with
you. DO NOT SEPARATE THE SCORESHEET COPIES. Score sheets must be filled out
identifying team members and their roles. Teams will receive their courtroom assignment after
the roster is turned in at registration.
Teams will fill out the score sheets prior to the pretrial conference. This requires the
cooperation of teams, advisors, and legal advisors.
Teams (including team and legal advisors and others associated with and supporting the
competing teams) may not observe other trials but team members may view their own team
members’ trials when they themselves are not competing.
Teams may videotape their own trials at the presiding judge’s discretion. Videos may be shared
only with the teams featured in the specific videos.
Teams may not use a lap top computer, tablet, phone or other similar device during the Mock
Trial competition.
The competition will run as scheduled RAIN or SHINE. The only way to guarantee that a
team will compete is to arrive at an open competition site. Teams travel to and from Mock Trial
at their own risk, and each team’s advisor must determine whether it is safe for the team to
travel to the competition site. The Ohio Center for Law-Related Education is not responsible
for the safety of team members who travel to or from the Mock Trial competition. Teams
MUST immediately contact the OCLRE office and the district/regional/state coordinator if
weather or any other reason prevents their participation. In the event that a significant number
of teams are not able to compete due to weather at the district or regional competitions, the
OCLRE will make an effort to provide a suitable make-up competition for those teams, but
cannot guarantee this will occur. If a make-up competition occurs, it will be scheduled within
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G.
H.
I.
III.
seven days of the original competition date established by OCLRE and teams may have to travel
and compete on a weekend. If a team drops out of competition after district or regional
schedules have been released, the team must fax the Drop Form to both OCLRE and the
district or regional coordinator.
If a situation develops whereby a team is left without an opponent, e.g. their scheduled
opponent withdraws from the competition at the last moment, teams already competing at that
site will be expected to fill in. If a team can play both sides at the same time, it will be assigned
to do so and then the team members are finished for the day. The second round will be
shortened by one trial. If there are no teams that can fill in, then a third trial will be scheduled
between the two teams that were left without opponents.
All students should wear a nametag (name only) so the judges can identify them. Witnesses
should wear the name of the character they play. All others should wear their own names. It is
the responsibility of the team to bring nametags with them.
Team and legal advisors are the ONLY individuals from each team who may approach a site
district/regional/state coordinator or volunteer with questions or concerns.
Eligibility for Competition
A.
B.
C.
D.
Teams entering the Ohio Mock Trial Competition will be guided in the current case by a team
advisor and an attorney, both of whom shall be rostered. The Ohio Center for Law-Related
Education believes the teams should be teacher-driven to insure that educational standards are
met. The attorney enriches the students’ knowledge by providing essential in-depth
understanding of the law and its role in democracy. Teams wishing to make an exception must
apply in writing to the OCLRE staff. Decisions will be made by the OCLRE Board of Trustees.
An official Competition Registration Form, team roster, signed behavior standards form and
registration fee for each team must be returned to the OCLRE office postmarked by Friday,
December 6, 2013. A confirmation will be sent from OCLRE to the email address on the
registration form. If the competition registration form and roster are returned AFTER Friday,
December 6, 2013 each team registered will be penalized a late registration fee of $30. If the
Competition Registration Form is returned AFTER Monday, January 6, 2014 the team will be
able to compete only on a space available basis and, if allowed to compete, will be penalized a
late registration fee of $30. If no spaces become available, the entire registration fee will be
returned to the team. A team roster is required to complete the registration process. Team
rosters must be submitted online via www.oclre.org by January 6, 2014 in order for that team to
be assigned to a competition site. Teams that submit rosters after this date will only be able to
compete on a space available basis.
It is understood that changes to the team roster may occur due to unforeseen circumstances.
Please send in a revised roster as it becomes available. Team advisors though are NOT allowed
to switch team members from the same school between teams if those teams are assigned to
different competition sites AFTER the district placements are announced on Friday, January 10,
2014. No roster additions will be permitted for ANY reason after the district competition
occurring on Friday, January 31, 2014 though advisors are able to drop team members if
necessary. If you must update your roster after sending in your registration form please mail, email or fax a revised roster to the OCLRE office, and we will accommodate you to the best of
our ability.
A school may enter more than one team. Every effort will be made to accommodate second,
third or more teams, although teams who are able to travel may be assigned to travel to other
competition sites. All teams will be matched at random at district, regional and state
competitions with the exception that two teams that play each other in one trial cannot be paired
against each other in the following trial. If possible, no more than 50% of teams in a district
competition site will be from the same school. If the majority of the teams assigned to one
competition site are from the same school, the Center will make an effort to select a team(s) at
random to travel to a Center selected location to compete.
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E.
F.
IV.
In order to compete, all teams must be accompanied on site, at the district, regional and state
competitions, by a teacher or school official, legal advisor or other designated adult. If a school
has more than one team, each team must be subject to the supervision of a designated adult who
can adequately supervise the team's behavior. While the supervisor does not need to be in the
room at all times, he or she must be available to respond promptly if there is a need. The adult
shall be listed on the team roster as the "designated adult supervisor." Failure to comply with
this rule may, at the discretion of the coordinator in charge of the competition, be grounds for
disqualification.
The Center can, upon request, make revisions to materials and the competition format to
accommodate students with I.E.P.’s and/or 504 plans.
Team Membership and Roles
A.
A mock trial team may be a school or a community team and consists of a minimum of five to a
maximum of eleven students (including alternates) on the official roster from the same high
school (if the team is affiliated with a high school), a team advisor, and a legal advisor. A
community team is a mock trial team which consists of students from a single high school or
multiple high schools which does not sponsor a mock trial team. A community team may only
exist with the approval of OCLRE. The team will have two attorneys (two different students),
two witnesses (two different students), and a bailiff/timekeeper, playing Plaintiff and Defense
sides of the case. If for any reason, including illness or other commitments, your team drops
below the minimum number of students (five) your team will forfeit its right to continue in the
competition. This is without exception. An individual student can be listed and serve on only
one team. Members of the team must be listed on the Official Team Roster that is available
online. Only those students listed on the Official Team Roster may participate in District,
Regional and State Competition. Although the team members must remain the same between
the District, Regional and State competition, the members may change the parts they play. It is
strongly suggested that a school submit a complete roster of eleven team members. A student at
a school which does not have a mock trial team may compete at another area high school or
join a community program with permission of OCLRE.
B.
A student may play one role per side. Students may change roles when presenting the other
side of the case. The roles are as follows:
Plaintiff
Defense
Attorney
Attorney
Attorney
Attorney
Witness
Witness
Witness
Witness
Bailiff and/or Timekeeper (Official)
Timekeeper (to assist
with running clock)
Each team must call and question two witnesses. Each team must have a student serve
as bailiff & timekeeper during the trial. Each team must use two attorneys for each side
played. Each attorney must conduct a direct and cross-examination and an opening or
closing statement. Only the attorney who conducts the direct examination of witnesses
may raise objections during the cross-examination of that witness.
1.
All team members and any props or uniforms must pass through local courtroom
security. As a general rule, courtroom security will not allow any weapon or object that
looks like a weapon into the courthouse. Be sure to leave adequate time and be
prepared to comply with courthouse security.
2.
A timekeeper will be supplied by both teams and must use ONLY the provided time
cards in the competition manual, timekeeper’s sheet and two stopwatches.
If a time-keeping discrepancy of more than 15 seconds is discovered between the
plaintiff and defense teams’ timekeepers, the timekeepers should notify the presiding
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judge as soon as the discrepancy is discovered. In this event, one of the timekeepers
should stand, wait to be recognized, and say “Your honor, we have a time discrepancy
of more than 15 seconds.” The presiding judge will ask the nature of the discrepancy
and then rule on the discrepancy before the trial continues. Once the presiding judge
rules, the timekeepers shall synchronize their stop watches to match the ruling of the
presiding judge. The decisions of the presiding judge regarding timing disputes are
final, and no timekeeping disputes will be entertained after the trial has concluded.
Timing will begin at the Opening Statement, after the introductions are made.
C.
V.
Legal Advisors
A.
B.
VI.
The student presentations should be the work product of the students themselves, guided, of
course, by the teacher and legal advisor. It is important that presentations be the student’s work
rather than having the student simply memorize the words prepared by an adult.
Teachers and legal advisors should work together to prepare the team for competition. The
Ohio Center for Law-Related Education will help locate a local attorney, judge, or legal
professional, if asked. A legal advisor must be rostered.
A legal advisor can help the team as a constructive observer and critical teacher
listening, suggesting, and demonstrating to the team. A legal advisor should:
1. Discuss the legal issues raised in the case;
2. Answer questions that students may have concerning general trial practices;
3. Explain the reasons for the sequence of events/procedures found in the trial;
4. Listen to the students’ approach to the case;
5. Discuss general strategies and raise key questions regarding the enactment;
6. Explain the role of judges and the decision-making process.
Judging and Scoring Guidelines
A.
B.
C.
D.
E.
F.
Every effort will be made to provide each trial with a three judge panel, all of whom will
complete score sheets. In some instances a trial may have to move forward with only two judges.
If this scenario occurs, and the two judges split on which team won the trial, the judges will add
up each team’s total points. If a split still persists, the scoring judge’s decision will be the
determining score. The judicial panel will hear the trial as a “bench trial.” This is not a jury trial
and students should address the Court and not a jury. One judge will serve as the presiding
judge and will control the courtroom and rule on motions and objections. The other judges will
serve as scoring judges and evaluate the team and individual performances. All attempts will be
made not to have the same judicial panel assigned to judge the same team more than one time.
All judges will receive a bench brief, competition rules and scoring procedures.
If judicial robes are available, judicial panelists are asked to wear the robe during competition.
Only the presiding judge is to speak during a trial. The presiding judge’s comments are limited
to ruling on objections and do not include questioning witnesses or counsel.
The trial will be judged based on individual and team performance, not the merits of the
case.
Attorney and witness awards will be based on the scoring judges’ points added together and are
not to be considered as “consolation” prizes. If there is a tie between the scoring judges’
points on a three judge panel, the Presiding Judge’s points will be considered to break
the tie. If a tie still exists, the scoring judges will make the decision based on a general
consensus. In a two judge panel the attorney and witness awards will be based on both
judges points added together. If a tie exists on a two judge panel, the scoring judge will
decide the winner.
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Scoring Process
1.
Each judge will evaluate each team member on a scale of 1-10. The team will be scored
on a 1-10 point scale for its overall performance.
a.
At the district, regional and state trials, each judge will score individual and
team performances using whole numbers only. The team that earns the most
points on an individual judge’s score sheet is the winner of that ballot. A judge
CANNOT have a tie between the two teams. If both scoring judges agree on
the winner, that team will advance. If the scoring judges do not agree on the
winner, the presiding judge’s ballot will also be considered, with the team
receiving the majority of the three ballots winning the trial.
b.
All teams who win both of their trials, determined by receiving two ballots per
trial, will advance in competition from districts to regionals and regionals to
states.
c.
At the state competition, teams will be eliminated after they lose one trial,
though OCLRE retains the authority to allow each team to compete in two
trials depending on the number of teams advancing to the state competition.
Each scoring judge will score individual and team performances (must use
whole numbers) and add the points at the end of the trial. A judge CANNOT
have a tie between the two teams. If both scoring judges agree on the winner,
that team will advance. If the scoring judge ballots are split, the presiding judge
ballot will determine which team wins and therefore advances.
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SCORING JUDGE RUBRIC
VII.
Scoring Benchmarks
A.
Scoring Judge Rubric
1.
2.
Attorney Performance Indicators:
 Advocacy skills: creative, organized and convincing presentation
 Understanding of legal issues: ability to apply law and facts to case
 Oratorical skills: poised, able to think on feet, extemporaneous delivery
 Demeanor/Professionalism/Civility
 Mastery of trial technique: effective use of objections, appropriate form of
questioning, ability to recognize and rehabilitate own weaknesses, mitigate
opponent’s good points
 Did not ask questions that called for an unfair extrapolation from the witness
 Did not make excessive, unnecessary objections when the invention of fact had no
material impact.
 Opening statement: provided case overview, identified theory of the case,
discussed the burden of proof, stated the relief requested and was nonargumentative
 Closing argument: continued theory of the case introduced in opening statement,
summarized the evidence, applied the applicable law, discussed the burden of
proof, concentrated on the important – not the trivial, and overall was persuasive
 Complies with Competition Rules
Witness Performance Indicators:
 Knowledge of case facts and theory of team’s case
 Observant of courtroom decorum
 Believability of characterization and convincing in testimony
 Avoided unnecessarily long and/or non-responsive answers on cross examination
 Articulate and responsive
 Did not make unfair extrapolations
 Complies with Competition Rules
Points, Performance and Evaluation Criteria
9-10
Excellent: Exhibits mastery of all procedural and substantive elements. Significantly
advances team effort.
7-8
Good: Proficient in most procedural and substantive elements. Helps team on the
whole.
5-6
Fair: Moderately comfortable with procedural and substantive elements of the trial but
contains some imprecise use of trial elements or lacks polish.
3-4
Weak: Does not advance team effort. Minimal comprehension of procedural and
substantive trial elements.
1-2
Poor: No evidence of procedural and substantive trial elements.
3.
Team Effort Indicators:
 Did the team establish a credible theme for its argument?
 Did the team select appropriate witnesses to prove the argument?
 Was witness examination organized?
 Did witness examination develop the argument?
 Was the team’s case carefully crafted and skillfully delivered?
 Complies with Competition Rules
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4.
Penalties
If a majority of the judging panel determines that there has been a material violation of a
competition rule that affected the fairness of the trial, 10 points shall be deducted from the
offending team’s score on each judge’s score-sheet. If the panel believes that a 10-point penalty
is insufficient given the seriousness of the violation, the panel shall consult with the Competition
Committee, which may impose additional sanctions including, but not limited to,
disqualification. One example of a material rules violation warranting a serious penalty would be
communication between team members and their teacher or legal advisor, whether through
signals, notes, or electronically. All objections must be made before the presiding judge retires to
deliberate. After that, complaints may be made only by the academic advisor after the
competition in writing using the complaint form. Such complaints will not alter the decisions of
the judicial panel.
15
PART TWO
PROCEDURAL RULES OF MOCK TRIAL COMPETITION
I.
Trial Rules and Procedures
A.
Preparation
The case and competition sections of the Ohio Mock Trial notebook contain all materials
necessary to participate in the competition. Students playing the roles of attorneys may make
appropriate use of the case materials, including the legal briefs, the Judge’s Order and all of the
witness statements, subject to all other applicable rules of the mock trial competition. However,
this does not include the case introduction, which is not considered a formal part of the case
materials. For purposes of the mock trial, all documentary facts are stipulated as admissible
evidence so they need not be formally introduced in court. Supplemental materials are also
provided to help teachers teach the case and explain the legal issues and procedures involved.
These materials may not be introduced into the trial; they are for educational purposes only.
If a legal citation is referred to in the case, it may be utilized in development of the legal theory
and cited. However, only facts and information given about that citation in the case materials
may be communicated to the court.
For example, if the Defendant’s brief states,
“The Fourth Amendment to the United States Constitution protects a person from
uninvited governmental intrusions when that person has a legitimate expectation of
privacy that society is willing to recognize as reasonable. Katz v. United States, 389
U.S. 347 (1967); O’Connor v. Ortega, 480 U.S. 709 (1987),”
and the case law provided in Mock Trial Case materials includes Katz but not O’Connor, then
teams may use the full Katz case. However, they may not use any part of O’Connor which is
not quoted or summarized by the case materials.
It is the responsibility of the mock trial team to present and advocate the law and facts
of the case to the judges. As in real life, the mock trial team should not assume judges know the
facts of the case.
B.
Time Limits
1.
2.
3.
4.
5.
6.
A trial is scheduled for two hours including all activities beginning with the pretrial
conference and ending with the closing of court. The presiding judge will enforce the
time limit and may, at his/her discretion, grant a time extension in the interest of
fairness.
Each team must supply a student timekeeper. However, the team playing the Plaintiff
side will supply the Official Timekeeper. Both teams may flash the cards provided in
the manual in such a way that all participants can see them.
Timing will begin at the Opening Statement, after the introductions are made.
If a time-keeping discrepancy of more than 15 seconds is discovered between the
plaintiff and defense teams’ timekeepers, the timekeepers should notify the presiding
judge as soon as the discrepancy is discovered. In this event, one of the timekeepers
should stand, wait to be recognized, and say “Your honor, we have a time discrepancy
of more than 15 seconds.” The presiding judge will ask the nature of the discrepancy
and then rule on the discrepancy before the trial continues. Once the presiding judge
rules, the timekeepers shall synchronize their stop watches to match the ruling of the
presiding judge. The decisions of the presiding judge regarding timing disputes are
final, and no timekeeping disputes will be entertained after the trial has concluded.
The time clock will stop for objections and responses.
The timekeeper will guide the judge’s comments by showing a 1:00 minute card and a
stop card 11 minutes and 12 minutes into the judge’s comments.
16
C.
Courtroom Setting
1.
2.
3.
4.
5.
6.
7.
D.
Plaintiff counsel on the right (facing bench).
Defendant’s counsel on the left (facing bench).
Witnesses behind counsel tables.
Judges on the bench (or, if necessary, in the jury box).
Bailiff in front of the bench.
The Timekeepers (unless also acting as bailiff) and video camera person
in the jury box, if possible.
Teachers and legal advisors behind the teams.
Conduct During Trial and Trial Sequence
1.
2.
3.
4.
5.
6.
The presiding judge controls the courtroom. He/She may ask anyone to leave, if
necessary. Teams may videotape their own trials at the presiding judge’s discretion.
Videos may be shared only with the teams featured in the specific videos.
Until closing arguments have concluded, team attorneys may communicate only with
each other. During the post-trial objection phase of the trial, attorneys may
communicate with the witnesses, bailiff and timekeeper performing in the actual round.
However, none of the performing team members may communicate in any way with
teachers, legal advisors, team members not performing in that round or any other
observers once the judicial panelists enter the courtroom and the bailiff opens the court.
This restriction includes breaks during the trial.
If a team prepares a third witness for trial that they do not call, that third witness may
not participate in the trial in any way including, but not limited to, sitting with the other
witnesses and conferring during the trial.
Attorneys may speak from a lectern in the center of the courtroom, if one is available.
Lecterns or other furnishings may not be moved into or out of any courtroom at any
time. The Plaintiff’s side is responsible for returning the lectern and chairs to original
position inside the courtroom following the trial. At the discretion of the presiding
judge, attorneys may walk about the courtroom. The preference of the presiding judge
should be raised and determined at the pre-trial conference.
No furnishing/equipment may be moved into the courtroom. Not all courtrooms are
equipped with the same furnishings; therefore, blackboards and other visual aids may
not be used. The rule on exhibits prevails.
The trial, including judges’ comments, should not last longer than two hours.
7.
Preparing Ballots for Pretrial Conference
Prior to the pre-trial conference, both teams roster the ballots for the round. This
requires the teams to disclose which witnesses they will be calling. Teams must also
disclose which segment of the trial each attorney will perform. All information will be
recorded in the (3) three ballots provided (2) two for the scoring judges and (1) one for
the presiding judge. These completed ballots will be given to the judicial panel at the
pre-trial.
8.
Pretrial Conference (10 minutes)
Student attorneys will participate in a pretrial conference with their judicial panelists.
Teachers, legal advisors and/or designated adult supervisors are encouraged to attend.
This brief orientation will include a discussion of competition rules and any questions
raised by the participants. No motions will be entertained during the pre-trial
conference. Pretrial conference may occur at the judge’s bench or in a separate room, if
available, at the judges’ discretion. Rostered score sheets will be given to the judicial
panel at the pre-trial. The Official Timekeeper will be identified and all time cards
approved by the presiding judge.
17
9.
Opening the Court
When the judicial panelists enter the courtroom, the bailiff opens the court by saying:
“All rise. Hear ye, hear ye, the U.S. District Court for the Middle District of
Ohio [or whatever the name of the court may be], Mock City, Ohio [or
whatever town in which the court is located] is open pursuant to adjournment.
All having business before this honorable court draw near, give attention, and
you shall be heard. You may be seated.”
10.
Opening Statements (4 minutes maximum per statement)
The presiding judge should ask counsel for the Plaintiff to make an opening statement.
Plaintiff counsel should introduce themselves and their team members and the roles
they are playing and then present the opening statement. The same procedure is used
with Defendant’s counsel. The timekeeper will stop and then reset the stopwatch to
zero after opening statements.
11.
Swearing in Witnesses
a.
The bailiff swears in with:
“Will all witnesses and parties who are to give testimony in these
proceedings please step to the front?”
b.
Then the bailiff holds up his/her right hand and says:
“Please raise your right hand. Do you solemnly swear that the
testimony you are about to give is the truth, the whole truth, and
nothing but the truth and your testimony will comply with the Rules of
the Ohio Mock Trial Competition?”
c.
Witnesses answer and sit down. They will remain in the courtroom during the
trial.
d.
No motion for separation of witnesses will be entertained.
12.
Testimony of Witnesses (Direct/redirect 20 minutes; Cross/re-Cross 18 minutes)
a.
Counsel for the Plaintiff and Defense will each call two witnesses. Plaintiff
attorneys must call plaintiff witnesses and Defense attorneys must call defense
witnesses.
b.
Counsel for the Plaintiff will present their case first. The presiding judge will ask
counsel for Plaintiff to call the first witness. The witness will then testify in the
following examination sequence:
Direct
Cross
Re-Direct
Re-Cross
When the Plaintiff’s counsel calls the second witness, the witness will be called
to the stand and the procedure repeated.
c.
The presiding judge will then ask counsel for Defense to call
their first witness. Defense follows the same procedure as the Plaintiff.
d.
Witnesses are bound by their written statements and should not be assumed to
have knowledge of facts set forth in the legal briefs, Judge’s Order, the
statements of other witnesses.
e.
Witness statements may be used by counsel to impeach a witness or refresh a
witness’s memory in accordance with the Mock Trial Simplified Rules of
Evidence. Witnesses may not, however, bring witness statements or notes to
use as a trial aid during testimony.
f.
Fair extrapolations are permitted only during cross-examination if they are (i)
consistent with the facts contained in the case materials and (ii) do not
materially affect the witness’s testimony. If a witness invents an answer that is
18
g.
likely to affect the outcome of the trial, the opposition may object. Teams that
intentionally and frequently stray outside the case materials will be penalized.
If an attorney who is cross-examining a witness asks a question,
the answer to which is not included in the witness’s written statement or
deposition, the witness is free to “create” an answer as long as it is not contrary
to the statement. If the answer is contrary to the statement, the crossexamination attorney may impeach the witness.
13.
Exhibits:
Only exhibits that are part of the case materials may be used as visual aids.
If used, the exact page from the case materials may be reproduced on 8 ½ x 11
paper, but not bound in plastic or modified in any way. The trial proceedings are
governed by the Simplified Ohio Rules of Evidence found in this casebook.
14.
Closing Arguments (5 minutes maximum each, with an additional 2 minutes Plaintiff
rebuttal)
The presiding judge will allow attorneys two minutes (no longer) before closing
arguments to incorporate results from cross or to collect their thoughts. During this time
the timekeepers will stop both stopwatches and reset to zero. No one shall leave the
courtroom and all rules on communication during the trial prevail. The presiding judge
will ask Plaintiff’s and Defendant’s counsel if they are ready to present his/her closing
arguments. Counsel for the Plaintiff will present his/her closing argument first, followed
by Defense’s closing argument. Counsel for the Plaintiff has the option of a two minute
rebuttal after Defense’s closing argument. These two minutes do not have to be
requested in advance. The optional rebuttal is limited to the scope of the Defense’s
closing argument.
15.
Objections During the Trial
In addition to evidentiary objections, objections may be made during the trial by an
attorney who believes that any rule set forth in the Rules of Competition has been
violated. For example, if an exhibit is mounted or modified, the other team’s attorney
may state an objection. Similarly, if an attorney observes what appears to be
communication between a team and their teacher during trial, the attorney may state an
objection. In making these objections, the procedure set forth for stating evidentiary
objections (Simplified Ohio Rules of Evidence and Common Objections) should be
followed. As with evidentiary objections, the objection must be made at the time of the
claimed violation, and the attorneys knew or should have known of the violation. No
objections may be raised during opening statements or closing arguments. The
presiding judge may make rulings as appear appropriate, including prohibiting use of an
exhibit that has been modified, requiring compliance with the rule, admonishing
individuals or teams, deducting penalty points from the team’s score (such deductions
to be done only by the entire panel during post-trial deliberations;), etc. All judges will
not interpret the rules and guidelines the same way. The judge’s decision, however, is
final, and no appeals procedure is available. The clock stops for objections and judge’s
ruling.
16.
Post-Trial Objections
After closing arguments are completed, and after the scoring judges have been excused
to begin deliberation in chambers, the presiding judge will ask, “Does either team have
serious reason to believe that a material violation of any rule has occurred during this
trial? I will remain on the bench for three minutes, during which time any protest or
objection may be brought to my attention by a team attorney. The team attorneys may
communicate with all performing team members (witnesses, bailiff and timekeeper)
19
involved in this actual round but may not communicate in any way with legal advisors,
teachers, or anyone outside their performing team members.”
a.
Motions for directed verdict or dismissal of the case are not permitted.
b.
Objections that could have been raised during the trial, including
evidentiary objections, may not be raised at this time.
If no objection is made within three minutes, the presiding judge will mark his/her score
sheet and then retire to assist with deliberations. If there is an objection, one of the
attorneys for the team will stand and state the objection and the ground for objection.
The judge may conduct an inquiry in the manner he/she deems appropriate; the judge
in his/her discretion may solicit a response and/or inquire further into the facts. The
presiding judge does not announce a finding but retires to assist with deliberations. The
presiding judge then consults with the scoring judges and may consult with a member of
the OCLRE staff.
17.
Gross Rules Violation
If a majority of the judging panel determines that there has been a material violation of
competition rules that affected the fairness of the trial, 10 points shall be deducted from
the offending team’s score on each judge’s score-sheet. If the panel believes that a 10point penalty is insufficient given the seriousness of the violation, the panel shall consult
with the Competition Committee, which may impose additional sanctions including but
not limited to disqualification. One example of a material rules violation warranting a
serious penalty would be communication between team members and their teacher or
legal advisor, whether through signals, notes, or electronically. All objections must be
made before the presiding judge retires to deliberate; after that, complaints may be
made only after the competition in writing using the complaint form and such
complaints will not alter the decisions of the judicial panel.
18.
Deliberation
Judicial panelists retire to chambers to add their ballots and discuss remarks to the
teams. Scoring judges will also add points to determine the recipients of the outstanding
witness and outstanding attorney awards. The Presiding Judge Final Tally Sheet and
ALL three competition score sheets will be completed immediately after each trial by
the two scoring judges and presiding judge and returned to the competition coordinator.
Judges may not hang on to score sheets between trials.
19.
Conclusion of Trial
The bailiff calls court back in session with:
“All rise. Court is now back in session.”
After the judges are seated, the bailiff says:
“You may be seated.”
20.
Debriefing and Announcement of Outstanding Witness and Attorney Awards
The presiding judge will provide debriefing comments on the strengths and
weaknesses of each team’s performance. The debrief should be precise, and last
no more than 12 minutes. The timekeeper will give the judge a one minute warning and
then a “stop.”
a.
Any penalties assessed on a team will be announced.
b.
The scoring judges will announce the outstanding witness and attorney awards,
discuss the highlights of their performances, and present their certificates.
c.
The winning team and scoring information will not be announced. Results will
be announced and posted by the Competition Coordinator at the end of the
district and regional competition and at the conclusion of appropriate rounds of
state competition. The official competition score sheet may be posted by the
20
d.
21.
district/regional coordinator at the end of the competition. After the district
competition, score sheets from the district competition will be sent to the teams
advancing to the regional competition. Individual team score sheets for all
teams from all levels of competition will be provided no later than April 9,
2013, one month after the end of the state competition.
Decisions of the judicial panel are final. Fill out an official competition
complaint form and send it to OCLRE. The staff will investigate and answer
the complaint.
Closing of Court
a.
The presiding judge will recognize and thank the teachers, legal
advisors, students, and families for their support and will turn the court back to
the bailiff.
b.
The bailiff closes the official proceeding with:
“All rise. This honorable court is hereby adjourned.”
c.
The plaintiff team is responsible for leaving the courtroom in the same
condition as it was found. Both teams are responsible for taking their own
papers and notebooks out and disposing of them properly.
21
II.
Condensed Trial Sequence and Time Guidelines (Running Clock):
Part of Trial
Pre-trial conference
Opening Statement – Plaintiff
Opening Statement – Defense
Direct and Re-Direct (2 witnesses)
Cross and Re-Cross (2 witnesses)
Minutes
10
4
4
20
18
Direct and Re-Direct (2 witnesses)
Cross and Re-Cross (2 witnesses)
20
18
Intermission to gather thoughts
2
Closing Statement – Plaintiff
Closing Statement – Defense
5
5
Rebuttal – Plaintiff only
Subtotal
Comments
(optional)
2
108
12
TOTAL
120 = 2 HOURS
22
PART THREE
SIMPLIFIED OHIO RULES OF EVIDENCE
Rules Unique to Mock Trial
I. Invention of Facts and Extrapolation (special rules for the Ohio Mock Trial Competition)
The object of these rules is to prevent a team from “creating” facts not in the material to gain an unfair
advantage over the opposing team.
Invention of Facts - Direct Examination. On direct examination the witness is limited to the facts given
in his/her own written statement. If the witness goes beyond the facts given (adds new facts or speculates
about facts), the testimony may be objected to by the opposing counsel as speculation or as invention of
facts outside the case materials. If a witness testifies in contradiction of a fact given in the witness
statement, opposing counsel should impeach the witness’s testimony during cross-examination. [See
also, Competition Instructions, “Testimony of Witnesses—Guidelines.”]
Invention of Facts – Cross Examination. If on cross-examination a witness is asked a question, the
answer to which is not contained in the facts given in the witness statement, the witness may respond with
any answer, so long as it is responsive to the question, does not contain unnecessary elaboration beyond
the scope of the witness statement, and does not contradict the witness statement. An answer which is
unresponsive or unnecessarily elaborate may be objected to by the cross-examining attorney. An answer
which is contrary to the witness statement may be impeached by the cross-examining attorney. [See also,
Competition Instructions, “Testimony of Witnesses—Guidelines”].
Example
The limits on fair extrapolation apply only to cross examination, and no extrapolation is
permitted on direct examination.
An accident reconstruction expert (Mr. Smith) has testified that the accident was caused by the
failure of the defendant to maintain an assured clear distance ahead. The defendant has
claimed that he was undergoing a type of epileptic seizure when the driver ahead stopped
abruptly. The accident reconstructionist testifies that even a person experiencing this kind of
epileptic seizure would have seen the car brake abruptly.
1. Unnecessary Elaboration
Cross-examiner:
“But you’re not a neurologist, are you, Mr. Smith?”
Mr. Smith:
“As a matter of fact, I have a Ph.D. in Neurology from Johns
Hopkins University and have written extensively on epileptic
seizures.”
If there is no hint in the case materials that Mr. Smith has expertise in neurology, it would be
regarded as an unnecessary elaboration
Elaboration necessitated by the Question
Cross-examiner:
“Have you testified before as an expert in accident reconstruction, or is
this the first time that you have ever testified?”
Mr. Smith:
“I have testified in 27 trials”
It may be reasonable for the expert to claim he has testified in 27 trials, if his age and
background make that plausible, even if there is nothing in the case materials to reflect an
answer to that question. It is an elaboration necessitated by the question.
23
II. Scope of Examinations
Scope of Direct Examination An attorney questions the witness she/he has called to stand. On
direct examination an attorney may inquire as to any relevant facts of which the witness has firsthand, personal knowledge.
Scope of Cross Examination
The scope of cross-examination shall not be limited to the
scope of the direct examination, but may inquire into any relevant facts or matters contained in
the witness’s statement, including all reasonable inferences that can be drawn from those facts
and matters, and may inquire into any omissions from the witness statement that are otherwise
material and admissible.
Re-Direct Examination After cross examination, additional questions may be asked by the direct
examining attorney, but such questions are limited to matters raised by the opposing attorney on
cross-examination. Just as on direct examination, leading questions are not permitted on
redirect.
Comment: If the credibility or reputation for truthfulness of the witness has been attacked
successfully on cross-examination, the attorney whose witness has been damaged may
wish to ask questions to “rehabilitate” the witness (save the witness’s truth-telling image).
Redirect examination may also be used to strengthen a positive fact that was weakened
by the cross-examination. Redirect examination is not required. A good rule to follow
is: if it isn’t broken, don’t fix it.
Examples:
1.
Cross Examination of physician called by Plaintiff in
murder case:
Attorney:
Witness:
Attorney:
Witness:
Doctor, you testified on direct that the defendant
died of arsenic poisoning, correct?
Yes.
Isn’t it true that you have a deposition in which you
testified that you did not know the cause of death?
Yes, that’s true.
Re-Direct:
Attorney:
Witness:
2.
Doctor, why did you testify in your deposition that
you did not know the defendant’s cause of death?
I had not yet received all of the test results which
allowed me to conclude the defendant died of arsenic
poisoning.
Cross Examination:
Attorney:
Witness:
Doctor, isn’t it true the result of test X points away
from a finding of arsenic poisoning?
Yes.
Re-Direct:
Attorney:
Witness:
Doctor, why did you conclude that the defendant
died of arsenic poisoning even though test X pointed away
from arsenic poisoning?
Because all of the other test results so overwhelmingly pointed
toward arsenic poisoning, and because test X isn’t always
reliable.
24
Comment:
Neither one of these redirect examinations should have been conducted unless
the attorney had a good idea of what the witness’s response would be. As a
general rule, it is not advisable to ask a question if you don’t know what the
answer will be.
Re-Cross Examination After redirect, additional questions may be asked by the cross examining
attorney, but such questions are limited to matters raised on redirect examination. Re-cross is
not mandatory and should not be used simply to repeat points that have already been made.
Example:
Assume the cross-examination in the example above has occurred. A good re-crossexamination would be the following:
Attorney:
Doctor, isn’t it true that when you gave your deposition you
had received all of the test results except the result of test X?
Witness:
Yes, that’s true.
Comment:
The cross-examining attorney would then argue in the
closing argument that the doctor testified in his deposition that he did
not know the cause of death at that time and the only test result
received after the deposition pointed away from arsenic poisoning.
III. Hostile Witness Rule- Mode and Order of Interrogation and Presentation
1. Control by court. The court shall exercise reasonable control over the mode and
order of interrogating witnesses and presenting evidence so as to (1) make the
interrogation and presentation effective for the ascertainment of the truth, (2) avoid
needless consumption of time, and (3) protect witnesses from harassment or undue
embarrassment.
2. Scope of cross-examination. Cross-examination shall be permitted on all
relevant matters and matters affecting credibility.
3. Leading questions. Leading questions should not be used on the direct
examination of a witness except as may be necessary to develop the testimony.
Ordinarily, leading questions should be permitted on cross-examination. When a
party calls a hostile witness, an adverse party, or a witness identified with an
adverse party, interrogation may be by leading questions.
4. When is a witness hostile? “Where a witness is an unwilling one, hostile to the
party calling him, or stands in such a situation as to make him necessarily adverse to
such party, his examination in chief may be allowed to assume something of the
form of cross-examination, at least to the extent of allowing leading questions to be
put to him.” 44 OH Jurisprudence 3d 241, “hostile witness” §. 869
The issue is whether the witness’s hostile attitude toward the party calling him/her is likely to make the
witness reluctant to volunteer facts helpful to that party. Hostility may be demonstrated by the witness’s
demeanor in the courtroom, by other facts and circumstances, or by a combination thereof. Whether a
witness is hostile is confided to the sound discretion of the presiding judge.
IV. Voir Dire
Voir Dire examination of a witness is not permitted
V. No offer of proof
No offers of proof may be requested or tendered
25
Article I. GENERAL PROVISIONS
RULE 101. Scope of Rules: Applicability; Privileges; Exceptions
Applicability. These rules govern proceedings in the Ohio Mock Trial Program and are the only
basis for objections in the Ohio Mock Trial Program
 No directed verdict or dismissal motion may be entertained.
Article IV. RELEVANCY AND ITS LIMITS
RULE 401. Definition of "Relevant Evidence"
"Relevant evidence" means evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it would be
without the evidence.
RULE 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible
Evidence which is not relevant is not admissible.
RULE 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Undue
Delay
(A) Exclusion mandatory. Although relevant, evidence is not admissible if its probative value is
substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of
misleading the jury.
(B) Exclusion discretionary. Although relevant, evidence may be excluded if its probative value is
substantially outweighed by considerations of undue delay, or needless presentation of cumulative
evidence.
RULE 404. Character
Character evidence. Evidence of a person's character, other than his/her character for truthfulness,
may not be introduced. Evidence about the character of a party for truthfulness or untruthfulness is
only admissible if the party testifies.
Article VI. WITNESSES
RULE 601. General Rule of Competency
Every person is competent to be a witness.
RULE 602. Lack of Personal Knowledge
A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that
S/he has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not,
consist of the testimony of the witness. This rule is subject to the provisions of Rule 703, relating to
opinion testimony by expert witnesses.
RULE 607. Who May Impeach
(A) Who may impeach. The credibility of a witness may be attacked by any party except that the
credibility of a witness may be attacked by the party calling the witness by means of a prior
inconsistent statement only upon a showing of surprise and affirmative damage. This exception does
not apply to statements admitted pursuant to Evid.R. 801(D)(1)(A), 801(D)(2), or 803.
RULE 608. Evidence of Character and Conduct of Witness
Opinion and reputation evidence of character. The credibility of a witness may be attacked or
supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the
evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful
character is admissible only after the character of the witness for truthfulness has been attacked by
opinion or reputation evidence or otherwise.
26
RULE 611. Mode and Order of Interrogation and Presentation
(A) Control by court. The court shall exercise reasonable control over the mode and order of
interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation
effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect
witnesses from harassment or undue embarrassment.
(B) Scope of cross-examination. For Ohio Mock Trial Rules, see Simplified Ohio Rules of Evidence
(Section II).
(C) Leading questions. Leading questions should not be used on the direct examination of a witness.
Leading questions are permitted on cross-examination. When a party calls a hostile witness
interrogation may be by leading questions.
RULE 612. Writing Used to Refresh Memory
If a witness uses a writing to refresh his memory while testifying, an adverse party is entitled to have
the writing produced at the hearing. He/she is also entitled to inspect it, to cross-examine the witness
thereon, and to introduce in evidence those portions which relate to the testimony of the witness.
RULE 616. Bias of Witness
In addition to other methods, a witness may be impeached by any of the following methods:
(A) Bias. Bias, prejudice, interest, or any motive to misrepresent may be shown to impeach the
witness either by examination of the witness or by extrinsic evidence.
(B) Sensory or mental defect. A defect of capacity, ability, or opportunity to observe, remember, or
relate may be shown to impeach the witness either by examination of the witness or by extrinsic
evidence.
(C) Specific contradiction. Facts contradicting a witness's testimony may be shown for the purpose
of impeaching the witness's testimony.
Article VII. OPINIONS AND EXPERT TESTIMONY
RULE 701. Opinion Testimony by Lay Witnesses
If the witness is not testifying as an expert, his/her testimony in the form of opinions or inferences is
limited to those opinions or inferences which are (1) rationally based on the perception of the witness
and (2) helpful to a clear understanding of his testimony or the determination of a fact in issue.
RULE 702. Testimony by Experts
A witness may testify as an expert if: (1) The witness is qualified as an expert by specialized
knowledge, skill, experience, training, or education regarding the subject matter of the testimony; and
(2) The witness's testimony is based on reliable scientific, technical, or other specialized information.
RULE 703. Bases of Opinion Testimony by Experts
The facts or data in the particular case upon which an expert bases an opinion or inference may be
those perceived by him/her or admitted in evidence at the hearing.
RULE 704. Opinion on Ultimate Issue
Testimony in the form of an opinion or inference otherwise admissible is not objectionable solely
because it embraces an ultimate issue to be decided by the trier of fact.
RULE 705. Disclosure of Facts or Data Underlying Expert Opinion
The expert may testify in terms of opinion or inference and give his/her reasons therefore after
disclosure of the underlying facts or data. The disclosure may be in response to a hypothetical
question or otherwise.
27
Article VIII. HEARSAY
RULE 801. Definitions
The following definitions apply under this article:
(A) Statement. A "statement" is (1) an oral or written assertion or (2) nonverbal conduct of a person,
if it is intended by him as an assertion.
(B) Declarant. A "declarant" is a person who makes a statement.
(C) Hearsay. "Hearsay" is a statement, other than one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of the matter asserted.
(D) Statements which are not hearsay. A statement is not hearsay if:
(1) Prior statement by witness. The declarant testifies at trial or hearing and is subject to crossexamination concerning the statement, and the statement is (a) inconsistent with his testimony, and
was given under oath subject to cross-examination by the party against whom the statement is offered
and subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (b)
consistent with his testimony and is offered to rebut an express or implied charge against him of
recent fabrication or improper influence or motive, or (c) one of identification of a person soon after
perceiving him, if the circumstances demonstrate the reliability of the prior identification.
(2) Admission by party-opponent. The statement is offered against a party and is (a) his own
statement, in either his individual or a representative capacity, or (b) a statement of which he has
manifested his adoption or belief in its truth, or (c) a statement by a person authorized by him to
make a statement concerning the subject, or (d) a statement by his agent or servant concerning a
matter within the scope of his agency or employment, made during the existence of the relationship,
or (e) a statement by a co-conspirator of a party during the course and in furtherance of the
conspiracy upon independent proof of the conspiracy.
RULE 802. Hearsay Rule
Testimony which is hearsay is inadmissible.
RULE 803. Hearsay Exceptions; Availability of Declarant Immaterial
The following are not excluded by the hearsay rule, even though the declarant is available as a
witness:
(1) Present sense impression. A statement describing or explaining an event or condition made
while the declarant was perceiving the event or condition, or immediately thereafter unless
circumstances indicate lack of trustworthiness.
(2) Excited utterance. A statement relating to a startling event or condition made while the declarant
was under the stress of excitement caused by the event or condition.
(3) Then existing, mental, emotional, or physical condition. A statement of the declarant's then
existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design,
mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove
the fact remembered or believed unless it relates to the execution, revocation, identification, or terms
of declarant's will.
(4) Statements for purposes of medical diagnosis or treatment. Statements made for purposes of
medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or
sensations, or the inception or general character of the cause or external source thereof insofar as
reasonably pertinent to diagnosis or treatment.
(6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in
any form, of acts, events, or conditions, made at or near the time by, or from information transmitted
by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it
was the regular practice of that business activity to make the memorandum, report, record, or data
compilation, all as shown by testimony.
28
RULE 804. Hearsay Exceptions; Declarant Unavailable
(A) Definition of unavailability. "Unavailability as a witness" includes any of the following
situations in which the declarant:
(4) is unable to be present or to testify at the hearing because of death or then-existing physical or
mental illness or infirmity;
(B) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is
unavailable as a witness:
(2) Statement under belief of impending death. In a prosecution for homicide or in a civil action or
proceeding, a statement made by a declarant, while believing that his or her death was imminent,
concerning the cause or circumstances of what the declarant believed to be his or her impending
death.
(3) Statement against interest. A statement that was at the time of its making so far contrary to the
declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or
criminal liability, or to render invalid a claim by the declarant against another, that a reasonable
person in the declarant's position would not have made the statement unless the declarant believed it
to be true. A statement tending to expose the declarant to criminal liability, whether offered to
exculpate or inculpate the accused, is not admissible unless corroborating circumstances clearly
indicate the truthworthiness of the statement.
RULE 805. Hearsay Within Hearsay
Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined
statements conforms with an exception to the hearsay rule provided in these rules.
Article IX. AUTHENTICATION AND IDENTIFICATION
RULE 901. Requirement of Authentication or Identification
(A) General provision. The requirement of authentication or identification as a condition precedent
to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is
what its proponent claims.
29
PART FOUR
EXAMPLES OF COMMON OBJECTIONS
AND TRIAL PROCEDURE
I.
A.
Procedure for Objections
An attorney may object if he/she believes that the opposing attorney is attempting to introduce
improper evidence or is violating the Simplified Rules of Evidence. The attorney wishing to object
should stand up and object at the time of the claimed violation. The attorney should state the reason for
the objection and, if possible, cite by rule number the specific rule of evidence that has been violated.
(Note: Only the attorney who questions a witness may object to the questions posed to that witness by
opposing counsel.) The attorney who asked the question may then make a statement about why the
question is proper. The judge will then decide whether a question or answer must be discarded because
it has violated a simplified rule of evidence (objection sustained), or whether to allow the question or
answer to remain in the trial record (objection overruled). Objections should be made as soon as
possible; however, an attorney is allowed to finish his/her question before an objection is made. Any
objection that is not made at the time of the claimed violation is waived. When an objection has been
sustained, the attorney who asked the question may attempt to rephrase that question. Judges may make
rulings that seem wrong to you. Also, different judges may rule differently on the same objection.
Always accept the judge’s ruling graciously and courteously. Do not argue the point further after a ruling
has been made.
II. Examples of Common Objections
The following are examples of common objections. This is not a complete list. Any objection properly based
on the simplified Ohio rules of evidence is permitted:
1.
2.
3.
4.
5.
Irrelevant evidence: "Objection. This testimony is irrelevant."
Irrelevant evidence that should be excluded: "Objection. This is unfairly prejudicial (or a waste
of time) and should be excluded because…"
Leading question: "Objection. Counsel is leading the witness." (Remember, leading is only
objectionable if done on direct or redirect examination).
Narrative Answer: "Objection, this witness's answer is narrative" Commonly used on direct
examination when a witness's answer has gone beyond the scope of the initial question.
Non-responsive Answer: "The witness is nonresponsive, your honor. I ask that this answer be stricken
from the record." The witness's answer does not answer the question being asked. Commonly used by
the cross examining attorney during cross examination.
Example:
6.
7.
8.
Attorney:
Isn’t it true that you hit student B?
Witness:
Student B hit me first. He/she was asking for it, acting like a jerk and
humiliating me in front of all my friends.
Attorney:
Your Honor, I move to strike the witness’s answer as non-responsive
and ask that he/she be instructed to answer the question asked. (Another option is to
impeach the witness with prior testimony if he/she testified in his his/her deposition that
he/she hit student B.)
Beyond the scope of cross or re-direct: "Objection. Counsel is asking the witness about matters
that were not raised during the cross or redirect examination."
Improper character testimony: "Objection. This is testimony about character that does not
relate to truthfulness or untruthfulness."
Improper opinion: "Objection. Counsel is asking the witness to give an expert opinion, and this
witness has not been qualified as an expert." OR "Objection. Counsel’s question calls for an
30
opinion which would not be helpful to understanding the witness’s testimony (or which is not rationally
based upon what the witness perceived.)"
Invention of facts: "Your Honor, we object on the basis that opposing counsel’s question seeks
evidence that is outside the record in this case. Witness X has never given testimony in this case
concerning…" If the witness gives testimony on direct that is beyond the scope of materials, the
cross-examining attorney should say "move to strike the testimony concerning…as beyond the
scope of the case materials."
9.
Example:
10.
11.
12.
If witness X did not personally see arsenic in the medicine cabinet of the
decedent’s wife, he cannot testify that she had arsenic in her medicine cabinet.
Lack of personal knowledge: “Objection.” The witness has no personal knowledge that would
allow her to answer this question.
Speculation: "Objection. The witness is speculating/this question calls for speculation." A hybrid
between lack of personal knowledge and improper opinion.
Hearsay: "Objection. Counsel’s question calls for hearsay." If a hearsay
response could not be anticipated from the question, or if a hearsay response is given before the
attorney has a chance to object, the attorney should say, "I ask that the witness’s answer be stricken
from the record on the basis of hearsay."
Example:
Witness X testifies that “Mrs. Smith said that the decedent’s wife
had a bottle of arsenic in her medicine cabinet.” This testimony is inadmissible if
offered to prove that the decedent’s wife had a bottle of arsenic in her medicine cabinet,
since it is being offered to prove the truth of the matter asserted in the out-of-court
statement by Mrs. Smith. If, however, the testimony is offered to prove that Mrs. Smith
can speak English, then the testimony is not hearsay because it is not offered to prove
the truth of the matter asserted in the out-of-court statement. However, the testimony is
only admissible if Mrs. Smith’s ability to speak English is relevant to the case.
Comment:
Why should the complicated and confusing condition be added that the out-of-court statement is only
hearsay when “offered for the truth of the matter asserted?” The answer is that hearsay is considered
untrustworthy because the speaker of the out-of-court statement has not been placed under oath and
cannot be cross-examined concerning his/her credibility. In the previous example, Mrs. Smith cannot
be cross-examined concerning her statement that the decedent’s wife had a bottle of arsenic in her
medicine cabinet, since witness X, and not Mrs. Smith has been called to give this testimony. However,
witness X has been placed under oath and can be cross-examined about whether Mrs. Smith actually
made this statement, thus demonstrating that she could speak English. When offered to prove that Mrs.
Smith could speak English, witness X’s testimony about her out-of-court statement is not hearsay.
Remember, there are responses to many of these objections that the examining attorney can make after the
objection is raised and he or she is recognized by the judge to respond.
III. Other Trial Procedures
A. Opening Statement
An opening statement has been defined as “a concise statement of [the party’s] claim [or
defense] and a brief statement of [the party’s] evidence to support it.” Judge Richard M. Markus,
Trial Handbook for Ohio Lawyers (Thomson-West, 2006 Edition), §7:1, p. 305. A
party seeking
relief should indicate the nature of the relief sought. It may be useful to acknowledge the applicable
burden, or burdens, of proof. An opening statement is not supposed to be argumentative, and should
be used by attorneys to present their theories of the case. Legal authorities can be cited, to show what
issue or issues are before the court for decision. It is appropriate to lay out what the attorney expects
the evidence will show, but the wise attorney will be conservative in this regard.
31
The most important aspect of the opening statement is to frame the issues. The attorney
wants to frame the issues so that there is a compelling narrative (the theory of the case)
in his/hers
client’s favor into which all the favorable facts and all favorable legal authority neatly fit. A well-crafted
opening statement tells a story that will dominate the trial that follows.
B. Closing Statements
Closing statements, “are permitted for the purpose of aiding the [finder of fact] in analyzing all
the evidence and assisting it in determining the facts of the case.” Markus, op. cit., §35:1, at p. 1013. In
a bench trial (to a judge, rather than to a jury), the closing statement is also the time to argue the law to
the judge.
The attorney should point out to the court that his/her side has proven everything that it
promised to prove, while pointing out that the other side failed to prove what it promised it would. It
can now be shown how the evidence that was presented fits into the narrative (the theory of the case) that
was introduced in opening statement, which, in turn, applying the law, compels a result in that side’s
favor. Remind the court what that favorable result is; i.e., the particular relief your client is seeking from
the court.
On occasion, your evidence won’t survive an objection, or the attorney’s best witness will be
forced to equivocate on an important point on cross-examination. When this occurs adjustments have
to be made to the closing statement to fit the evidence actually presented in the trial.
The closing statements are the final opportunities to persuade the judge. In oral presentation,
the statements having the most impact are the first statements, and the final statements. The attorney
should try to make the first and last things said in closing argument the most vivid and persuasive, while
reserving those points that have less emotional impact, but need to be said, for the middle of the
statement.
C.
Direct Examination - Form of Questions.
Witnesses should be asked neutral questions and may not be asked leading questions on direct
examination. Neutral questions are open-ended questions that do not suggest the answer and
that usually invite the witness to give a narrative response. A leading question is one that
suggests to the witness the answer desired by the examining attorney and often suggests a “yes”
or “no” answer.
Examples:
1.
Proper direct examination questions:
a.
b.
2.
What did you see?
What happened next?
Leading questions (not permitted on direct):
a.
b.
Isn’t it true that you saw the defendant run into the alley?
After you saw the defendant run into the alley, you called the
police, didn’t you?
D. Cross Examination - Form of Questions
An attorney should usually, if not always, ask leading questions when cross-examining the
opponent’s witness. Open-ended questions tend to evoke a narrative answer, such as “why” or
“explain,” and should be avoided. (Leading questions are not permitted on direct examination
because it is thought to be unfair for an attorney to suggest answers to a witness whose testimony
is already considered to favor that attorney’s side of the case. Leading questions are encouraged
on cross-examination because witnesses called by the opposing side may be reluctant to admit
facts that favor the cross-examining attorney’s side of the case.) However, it is not a violation of
this rule to ask a non-leading question on cross-examination.
Examples:
1.
Good leading cross examination question:
Isn’t it true that it was almost completely dark outside when you say you saw the
defendant run into the alley? (This is a good question where the witness’s
32
statement says it was “almost completely dark,” but a potentially dangerous
question when the statement says it was “getting pretty dark out.”
2.
Poor cross examination question:
How dark was it when you saw the defendant run into the alley? (the witness
could answer, “It wasn’t completely dark. I could see him.”)
E. Opinion Testimony by Non-Experts
For mock trial purposes, most witnesses are non-experts. If a witness is a non-expert, the
witness’s testimony in the form of opinions is limited to opinions that are rationally based on
what the witness saw or heard and that are helpful in explaining the witness’s testimony. Nonexperts (lay witnesses) are considered qualified to reach certain types of conclusions or opinions
about matters which do not require experience or knowledge beyond that of the average lay
person. Note, however, that the opinion must be rationally based on what the witness saw or
heard and must be helpful in understanding the witness’s testimony.
Examples:
1.
Witness X, a non-expert, may testify that the defendant appeared under
the influence of alcohol. However, it must be shown that this opinion is
rationally based on witness X’s observations by bringing out the facts underlying
the opinion, e.g., the defendant was stumbling; his breath smelled of alcohol;
his speech was slurred. If witness X thinks the defendant was under the
influence because he had a strange look in his eye, then the opinion should not
be permitted because it is not sufficiently rational and has potential for undue
prejudice.
2.
Witness X, a non-expert, may not testify that in his opinion the decedent
died of arsenic poisoning, since this is not a matter that is within the general
knowledge of lay persons. Only an expert, such as a forensic pathologist, is
qualified to render such an opinion.
F. Opinion Testimony by Experts
Only persons who are shown to be experts at trial may give opinions on questions that
require special knowledge beyond that of ordinary lay persons. An expert must be
qualified by the attorney for the party for whom the expert is testifying. Before a witness can
testify as an expert, and give opinions in the area of his/her expertise, a foundation must be laid
for his/her testimony by introducing his/her qualifications into evidence. In a sense, every
witness takes the stand as a non-expert, and the questioning attorney must then establish the
witness’s expertise to the court’s satisfaction for the witness to be able to testify as an expert. This
is usually accomplished by asking the expert himself/herself about his/her background, training
and experience.
Example:
Attorney: Doctor, please tell the jurors about your educational
background.
Witness: I attended Harvard College and Harvard Medical School.
Attorney: Do you practice in any particular area of medicine?
Witness: I am board-certified forensic pathologist. I have been a
forensic pathologist for 28 years.
It is up to the court to decide whether a witness is qualified to testify as an expert on a particular
topic.
33
G.
H.
Refreshing Recollection (Rule 612)
If a witness is unable to recall information in his/her witness statement or contradicts the
witness statement, the attorney calling the witness may use the witness statement to help the
witness remember.
Example: Witness cannot recall what happened after the defendant ran into the
alley or contradicts witness statement on this point:
1.
Mr./ Mrs. Witness, do you recall giving a statement in this case?
2.
Your Honor may I approach the witness? (Permission is granted.)
I’d like to show you a portion of the summary of your statement, and ask you
to review the first two paragraphs on page three.
3.
Having had an opportunity to review your statement, do you now
recall what happened after the defendant ran into the alley?
Impeachment (Rule 607)
On cross-examination, the cross-examining attorney may impeach the witness. Impeachment
is a cross-examination technique used to demonstrate that the witness should not be believed.
Impeachment is accomplished by asking questions which demonstrate either (1) that the witness
has now changed his/her story from statements or testimony given by the witness prior to the
trial, or (2) that the witness’s trial testimony should not be believed because the witness is a
dishonest and untruthful person.
Impeachment differs from the refreshing recollection technique. Refreshing recollection is used
during direct examination to steer a favorable, but forgetful, witness back into the beaten path.
Impeachment is a cross-examination technique used to discredit a witness’s testimony.
Examples:
1.
Impeachment with prior inconsistent statement:
Attorney:
Witness:
Attorney:
Witness:
Attorney:
Witness:
Attorney:
Witness:
Attorney:
Witness:
Attorney:
2.
Mr. Jones, you testified on direct that you
saw the two cars before they actually collided, correct?
Yes.
You gave a deposition in this case a few months
ago, correct?
Yes.
Before you gave that deposition, you were sworn in
by the bailiff to tell the truth, weren’t you?
Yes.
Mr. Jones, in your deposition, you testified that the first
thing that drew your attention to the collision was when
you heard a loud crash, isn’t that true?
I don’t remember saying that.
Your Honor, may I approach the witness?
(Permission is granted.) Mr. Jones, I’m handing you the
summary of your deposition and I’ll ask you to read along as I
read the second full paragraph on page two, “I heard a loud
crash and I looked over and saw that the two cars had just
collided. This was the first time I actually saw the two cars.”
Did I read that correctly?
Yes.
Thank you Mr. Jones.
Impeachment with prior dishonest conduct:
Attorney:
Witness:
Student X, isn’t it true that last fall you were suspended
from school for three days for cheating on a test.
Yes.
34
I.
Introduction of Physical Evidence (Rule 901)
Generally, physical evidence (objects) must be relevant and authentic (shown to be what
they appear to be) in order to be admissible. Exhibits are generally presented to the court
through witness testimony. Specifically, for mock trial purposes, all exhibits contained in the
case materials have already been stipulated as admissible evidence and may not be altered to
give either side an unfair advantage. This means that both sides have agreed that all exhibits are
admitted. Therefore, it is not necessary to demonstrate through a witness’s testimony that an
exhibit is authentic, an accurate representation or admissible, nor is it necessary to move the
court for the admission of the physical evidence.
Example:
Attorney: Your honor, we have marked this one-page document as
Plaintiff Exhibit 1 (or Defendant’s Exhibit A). Let the record reflect
that I am showing Plaintiff Exhibit 1 (or Defendant’s Exhibit A) to
opposing counsel. (Exhibit is shown to opposing counsel.) Your
Honor, may I approach the witness?
Judge: You may.
Attorney: Witness X, I’m showing you what has been marked as
Plaintiff Exhibit 1. Do you recognize that exhibit?
Witness: Yes.
Attorney: Could you explain to the Court what that is?
Witness: It’s a map of the accident scene. (At this point, the attorney
may ask the witness any additional relevant questions about the
exhibit, and then give it to the judge.
35
Competition Forms
36
37
38
39
PHILLIPS
SCHOOL
DISTRICT
vs.
JESSE
SPRINGFIELD
ET AL.
40
SPECIAL INSTRUCTIONS
1. Both the Plaintiff’s and Defendant’s Motions for Temporary Restraining Order will be
considered in this hearing.
2. The Plaintiff, Phillips School District, will present evidence first in this hearing. Then,
the Defendants, Jesse Springfield et al., will present evidence.
3. All rules included in the “Simplified Ohio Rules of Evidence” in the case materials
will apply.
4. Exhibit C “Map of Phillips High School” is not drawn to scale.
41
IN THE COURT OF COMMON PLEAS
PHILLIPS COUNTY, OHIO
PHILLIPS SCHOOL DISTRICT
vs.
JESSE SPRINGFIELD, ET AL.
:
:
:
:
:
:
:
:
:
Case No. 001-2014
ORDER FOR MOTION HEARING
This matter is before the Court on the Motion of Plaintiff for temporary
restraining order under Civ.R. 65. The Court will also consider Defendants’ motion. An
evidentiary hearing to address both the Plaintiff’s and Defendants’ cross motions is
scheduled to begin on January 31, 2014.
SO ORDERED
_____________________
Judge Bell
42
IN THE COURT OF COMMON PLEAS
PHILLIPS COUNTY, OHIO
PHILLIPS SCHOOL DISTRICT,
Plaintiff,
v.
Case No. 001-2014
:
:
:
:
:
:
JESSE SPRINGFIELD, ET AL.,
Defendants.
Judge Bell
:
:
:
PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER AND
MEMORANDUM IN OPPOSITION TO DEFENDANTS’ MOTION FOR
TEMPORARY RESTRAINING ORDER
COMES now Plaintiff Phillips School District (“Phillips Public,” “the district”),
and respectfully moves the Court, pursuant to Civ.R. 65, for an order requiring
Defendants Jesse Springfield, Storm Jackson, Alex Leslie, Terry Silva and Trilby Van
Acker (collectively “Defendants”) to vacate the tent city erected outside the football field
at Phillips High School (“Phillips High”). Defendants are not entitled to the use of school
property because they are a non-curriculum related group as defined by the Phillips High
Student Handbook and the federal Equal Access Act.
Additionally, Phillips Public hereby opposes Defendants’ Motion for Temporary
Restraining Order, in which Defendants seek to restrain Phillips Public from removing
Occupy leaflets from school bulletin boards and from otherwise enforcing school policy
regarding non-school sponsored publications at Phillips High under the First and Fourth
Amendments. Defendants’ behavior in protesting a recent sponsorship agreement with
National Fructose Corporation (“NFC”) is disruptive to the educational environment at
Phillips High and interferes with school activities. Accordingly, Phillip’s enforcement of
its policies merely constitutes reasonable time, place, and manner restrictions on speech.
43
The grounds for this Motion, and for Phillips Public’s opposition to Defendants’
Motion, are set forth in greater detail in the Memorandum in Support below.
Respectfully Submitted,
Attorney for Phillips Public
44
MEMORANDUM IN SUPPORT
FACTUAL BACKGROUND
As has been the case in many school districts all over the country, the last several
years have brought significant financial challenges to Phillips Public. The district has
been hit hard by declining revenue from property taxes and increasing operational costs.
Phillips Public strives to prepare its students emotionally, academically, and physically
for their futures, but doing so has put increasing strain on the district’s already tight
budget.
Several months ago, NFC approached Phillips High’s Principal Gomez with an
offer that would provide Phillips Public with a significant opportunity intended to ease
the financial strain on the district and improve the educational experience for all students
at Phillips High. NFC would pay for installation of a new artificial turf field in exchange
for stadium naming rights and exclusive rights to concessions sales and vending on
campus. Further, NFC would donate 2% of its concessions and vending sales at Phillips
High to Phillips Public. The new field would significantly reduce maintenance costs and
increase the school’s reputation in the area, while the concessions and vending agreement
would reduce administrative costs, in addition to providing the district with a small
revenue stream.
After receiving the offer, Principal Gomez arranged for an NFC representative,
Lee Martin, to meet with members of the Phillips Public school board. Acknowledging
the significant benefits that would result from NFC’s sponsorship of Phillips High, the
board agreed to place the matter on the agenda for its next regularly-scheduled meeting.
And at the board meeting, the members of Phillips Public’s school board unanimously
approved the contract.
45
Subsequently, the district announced its agreement to the public. While the
announcement was largely well-received, a small number of Phillips High students began
to voice their displeasure with the school’s acceptance of corporate aid. Initially, the
students’ protestations caused minimal disruption to the school day. For example, some
of the students, including Defendants, discussed the sponsorship agreement in Alex
Chen’s U.S. History class. Although the topic was not specifically curriculum-related, the
discussions did not initially cause significant disruptions to the school day or to class.
The school thus took the view that they were a healthy expression of student intellect. As
a result of the discussions in Chen’s class, Principal Gomez even agreed to meet with a
group of students to explain the rationale underlying the agreement.
At the meeting, however, matters quickly began to escalate. Principal Gomez and
the district’s superintendent attempted to explain the process of how the project came to
be and all of the benefits that students would receive as a result. Moreover, Principal
Gomez and the superintendent explained that the school board is responsible to residents
and to taxpayers and must manage its finances accordingly. The students, however,
refused to listen to the explanations offered and accused the board members of accepting
“back room deals” with “corporate America.”
Following the meeting, some of the students opposed to Phillips’s sponsorship
agreement began to form into a group they called “Occupy.” Students opposing the NFC
sponsorship agreement repeatedly engaged others in “vigorous debates” in the hallways.
Often, these “debates” devolved into loud arguments, resulting in disruptions to ongoing
classes and causing some students to be late for class. On one occasion, the Occupy
demonstrations nearly resulted in a physical altercation.
46
Additionally, Occupy protestors began to litter Phillips High’s campus with
leaflets and other material. Significantly, Occupy’s leafleting activity did not comply
with school’s rule regarding non-school sponsored publication. Under the rule, which the
school provides to students in its Student Handbook, non-school sponsored publications
may only be distributed on school property if it does not advertise commercial or
professional services, if it is produced entirely off campus, and if distribution occurs only
before 7:45am and after 3:05pm. Further, such publications must acknowledge their
author and be submitted to the school principal at least one day in advance of distribution.
Here, Occupy’s leaflets failed to acknowledge a specific author, listing only the Occupy
group as its source. Additionally, the leaflets were not provided to Principal Gomez prior
to distribution.
Several days after the initial protests began, Pat Jacobs, one of the school’s
custodial employees, discovered that construction equipment being used to renovate the
school’s football field had been vandalized with spray paint. Although the school could
not identify a specific perpetrator, Principal Gomez suspected that the vandalism was
connected with the Occupy protests, given the equipment’s connection with the NFC
sponsorship agreement and the fact that Occupy had held a “meeting” earlier the same
day.
Concerned over the vandalism and the increasingly disruptive nature of Occupy’s
protest activities, Principal Gomez had security cameras installed throughout the school
as a precautionary measure and worked with the local police department to develop a
plan to investigate Occupy and ensure that the protests would not escalate into violence
47
or other illegal activity. Specifically, the police assigned a non-uniformed officer, Casey
Mancuso, to observe Occupy.
During the course of the investigation, Mancuso heard several students discussing
plans to vandalize school property and hack into school computes. A number of students
also discussed various forms of “civil disobedience,” stating, “[w]e should do whatever it
takes” and “[s]ometimes you have to break the law to get noticed.”
Additionally, Occupy began a campaign of posting misleading and factually
untrue information online. For example, one student used his Twitter account to attempt
to link NFC’s product with diabetes:
Want diabetes with that burger and fries? Enjoy an NFC soft drink
#occupythefield (Exhibit D)
And more seriously, another student even claimed to have hacked into Principal Gomez’s
email account. The Twitter post essentially accused the Principal accepting a bribe or a
kickback, stating as follows:
Just hacked Principal’s
#occupythefield (Exhibit D)
e-mail
account—NFC
owns
that
fool!
Meanwhile, in Chen’s U.S. History class, what had begun as a corollary to the
class’s discussion of the civil rights movement several days earlier, started to interfere
with class objectives. The school’s sponsorship agreement had become the only topic
discussed in class and Defendants would essentially hijack class discussions in an attempt
to encourage others to join the Occupy protests. Thus, Occupy prevented class
discussions from covering almost any other topic.
As the disruptions caused by Occupy became increasingly severe, Principal
Gomez instructed Jacobs to remove Occupy materials from school property. Defendants’
48
leaflets littered bulletin boards, tables in common areas within the school, and were even
left under the windshield wipers of parked cars. Moreover, NFC stickers were placed
over the coin slots of vending machines on campus, thus preventing access to the
machines. Although the school has not always removed outdated or unauthorized
material from bulletin boards as promptly as it should, the excessively intrusive nature of
Occupy’s material required timely action in this case. Accordingly, Principal Gomez
instructed Jacobs to regularly patrol the school and remove offending material.
When Occupy began to discuss erecting a tent city on Phillips High’s football
field, Principal Gomez was forced to lock the stadium gate as a precautionary measure.
Additionally, at that point, Principal Gomez sent notices to Defendants, stating that
Occupy’s literature violated school policy and that, as a non-curriculum related group,
Occupy was prohibited from utilizing school facilities for meetings or activities.
The students, however, promptly disregarded Principal Gomez’s instructions and
went ahead with their plan to erect a tent city. Approximately 40 students set up 10-12
tents near the chain-link fence surrounding Phillips High’s football stadium. Both Chen
and Mancuso were present at the Occupy protest that evening. Although the students did
not appear to engage in any overt illegal activities, Occupy members discussed possibly
blocking the gate to the stadium to prevent construction access, as well as other
potentially disruptive actions. Further, students over the age of 18 remained camped
outside of the stadium gate throughout the night.
At the tent city, Occupy members also posted the following signs along the fence
surrounding the stadium:


NFC Diabetes Clinic
Obesity is Cool—NFC
49






Fat Students—Fat Profits
Stadium for Sale to Highest Bidder
Occupy Freedom Field
Money is Not Speech
Support NFC Workers
NFC Diabetes Delivery System
Again, Occupy members falsely accused NFC of “buying out” Phillips Public at the
expense of its students.
The following morning, Principal Gomez finally concluded that swift action was
required to address the significant threat Occupy posed to the educational mission of
Phillips High. He ordered Jacobs and Mancuso to open and search Defendants’ lockers
for additional leaflets and other evidence of activity likely to cause disruptions to the
school day. Inside the lockers, Jacobs and Mancuso discovered additional flyers related to
the Occupy protests and Principal Gomez temporarily confiscated Defendants’ backpacks
pursuant to the school’s search policy. Principal Gomez had all the relevant items found
in the lockers brought to his office. The students were then brought individually into the
office, where Principal Gomez had Jacobs search their backpacks. Defendants’ backpacks
contained yet more Occupy flyers, as well as cellular phones. Because the cellular phones
may have held evidence pertaining to Occupy’s claim that it had hacked into the e-mail
accounts of Principal Gomez and several Phillips Public board members, Principal
Gomez asked Defendants for authorization to search the phones. Defendants did not give
Principal Gomez their consent, and Principal Gomez therefore retained the phones in
order to preserve potential evidence of a crime.
The following day, Phillips Public filed the present complaint. Phillips Public
seeks a temporary restraining order, prohibiting Occupy protestors from gathering in the
50
area outside of Phillips High’s stadium. Defendants have since filed a counterclaim,
seeking to prevent the school from maintaining order and enforcing its rules regarding the
posting of non-school sponsored publications.
LAW AND ARGUMENT
Phillips Public’s Motion for Temporary Restraining Order
A temporary restraining order is a form of injunctive relief intended to prevent
irreparable harm to the applicant. Civ.R. 65(A); Coleman v. Wilkinsin, 147 Ohio App.3d
357, 2002-Ohio-2021, citing Corbett v. Ohio Bldg. Auth., 86 Ohio App.3d 44, 49 (10th
Dist. 1993). In evaluating a motion for temporary restraining order, a court must consider
four factors when determining whether to grant the order: (1) whether the movant has a
strong or substantial likelihood of success on the merits of his underlying claim, (2)
whether the movant will be irreparably harmed if the order is not granted, (3) what injury
to others will be caused by the granting of the motion, and (4) whether the public interest
will be served by granting the motion. Id.
Here, the Phillips Public’s Motion satisfies all four factors. Occupy is not a
curriculum-related student group, as defined by both the school’s Student Handbook and
the federal Equal Access Act. Therefore, its members may not use school facilities for
meetings or activities. Further, in addition to financial damage, Phillips Public will suffer
irreparable harm to its reputation if Occupy’s tent city is allowed to persist on school
property. Occupy’s members will also not be prejudiced by injunctive relief, as Phillips
High provides ample opportunity for alternative channels of communication. Finally, the
public interest in maintaining an orderly educational environment weighs in favor of
Phillips Public.
51
Substantial Likelihood of Success
“Occupy” is an unregistered, non-curriculum related protest movement and is,
therefore, not permitted to use school facilities for meetings or activities. Under the Equal
Access Act, public schools may not discriminate amongst student groups on the basis of
the religious, political or philosophical nature of the activities. 20 U.S.C. 4071(a). Thus, if
the school allows non-curriculum related groups to access school facilities, it must not
prohibit certain groups from doing so merely because school administrators may disagree
with the group’s message.
Significantly, however, schools may essentially opt out of the Act’s requirements
if they prohibit all non-curriculum related groups from using school property for
activities or meetings. 20 U.S.C. 4071(b). Here, Phillips High has elected to prohibit all
non-curriculum related groups from using school premises.
The U.S. Supreme Court has defined “curriculum-related” and “non-curriculum
related” groups as follows.1 A group is curriculum-related if: (1) meetings are voluntary
and student-initiated; (2) meetings are not sponsored by the school or government; (3)
meetings don’t interfere with school activities; and (4) people from outside the school
don’t participate in the group’s activities. Bd. Of Educ. v. Mergens, 496 U.S. 226, 110
S.Ct. 2356 (1990).
Conversely, a group is non-curriculum related if: (1) the subject matter of the
group is not taught in class, (2) the group’s subject matter does not concern the student
body as a whole, and (3) participation in the group is not required for a course and does
not result in credit. Id.
Phillips High’s rule regarding student clubs, which is provided to students at the start of each
academic year in the school’s Student Handbook, mirrors the definitions for both curriculum-related
and non-curriculum related groups in Mergens.
1
52
Occupy is a non-curriculum related student group because its activities
significantly interfere with school activities and because its subject matter is not taught at
Phillips High.
Regarding disruptions to school activities, loud arguments in the hallways
amongst students regarding the school’s acceptance of corporate aid have disrupted
classes and caused some students to be late for class. One such argument even nearly
caused a physical altercation, and it is only matter of time before the arguments devolve
into physical violence.
Students have also vandalized construction equipment and placed stickers over
coin slots to prevent access to vending machines on campus. The posting of false and/or
misleading information about school administrators online and in leaflets is also likely to
cause disruptions, as evidenced by several comments made by students during various
Occupy meetings and at the tent city.
During their meetings, Mancuso heard students discussing increasingly aggressive
tactics, including hacking into school and district email accounts. One student also stated,
“[w]e should do whatever it takes,” and another said, “[s]ometimes you have to break the
law to get noticed and get the man to understand.” At the tent city, Mancuso’s statement
notes that students discussed potentially violent conduct, as well as physically blocking
the entrance to the field so as to halt construction. Thus, Occupy’s activities, including
the tent city outside of the school’s field, have created, and are likely to continue to
create, a significant disruption to school activities.
Additionally, although discussions regarding the NFC agreement may have
initially been ancillary to curricular material, such activity has since prevented Chen’s
53
U.S. History class from moving forward onto other topics covered on the course syllabus.
In other words, although limited discussion of the sponsorship agreement was perhaps an
acceptable tangent to a valid course topic (the civil rights movement), the school’s
contract with NFC is not, in and of itself, part of the planned curriculum and now
functions to disrupt Chen’s U.S. History class.
Because protests have caused a significant disruption to school activities, and
because the group’s subject matter is not taught in class, Occupy is a non-curriculum
related student group. As a non-curriculum group, “Occupy” is prohibited from using
school facilities for meetings or activities pursuant to the school’s rule regarding student
clubs. Therefore, Phillips Public has established substantial likelihood of success on the
merits of its underlying claim.
Irreparable Harm
The second prong that a court must consider in evaluating a motion for temporary
restraining order is whether the applicant will suffer irreparable harm if the injunction is
not granted. Although Martin has indicated that the project will likely continue even if
Occupy’s protests persist, his statement notes that NFC would incur significant additional
costs as a result of having to provide extra security and obtaining additional insurance.
Should the NFC agreement collapse as a result of Occupy activities, Phillips will lose
$500,000 in facilities improvements the school will be unable to obtain in any other way.
Moreover, both Phillips High and Phillips Public will suffer irreparable damage to
their reputations if Occupy is not restrained from its continued false and misleading
portrayal of NFC and the school district through its on-campus demonstrations. At the
tent city, for example, Occupy members posted the following signs along the fence
surrounding the stadium:
54








NFC Diabetes Clinic
Obesity is Cool—NFC
Fat Students—Fat Profits
Stadium for Sale to Highest Bidder
Occupy Freedom Field
Money is Not Speech
Support NFC Workers
NFC Diabetes Delivery System
In essence, Occupy protestors incorrectly suggest that NFC “bought out” Phillips
High and district officials to the detriment of Phillips Public students, taxpayers and the
public. The record is, in stark contrast to Occupy’s characterization, rife with evidence
that the district accepted NFC’s offer to sponsor Phillips High in order to alleviate
significant financial concerns and in order to positively impact the lives of its students
through improvements to the stadium and other facilities.
Occupy’s tent city has garnered substantial attention from local news media and
the protestors’ one-sided and inaccurate portrayal of the school’s sponsorship agreement
with NFC has already resulted in significant damage to the school and the district’s
reputation. If allowed to continue, Phillips High’s reputation will continue to incur further
damage. Therefore, Phillips Public respectfully requests that this Court grant its Motion
for Temporary Restraining Order.
Prejudice to Third Parties
This Court should also grant Phillips Public’s Motion because there is no
evidence that an order prohibiting Defendants from maintaining their tent city on school
property would unduly prejudice Defendants. Occupy have ample alternative channels of
communication available.
The U.S. Supreme Court has recognized that certain time, place and manner
restrictions on speech are appropriate in furtherance of a significant governmental
55
interest, provided that alternative channels for communication are available. Clark v.
Community for Creative Non-Violence, 468 U.S. 288, 104S.Ct. 3065 (1984). Specifically,
the Court stated as follows:
Expression, whether oral or written or symbolized by conduct, is subject
to reasonable time, place or manner restrictions. * * * [R]estrictions of this
kind are valid provided that they are justified without reference to the
content of the regulated speech, that they are narrowly tailored to serve a
significant governmental interest, and that they leave open ample
alternative channels for communication of the information.
Id.
Here, Phillips High’s prohibition on the use of school facilities by non-curriculum
related student groups is content-neutral and Defendants have ample alternative channels
for communication available. In particular, Phillips Public does not seek to limit
Occupy’s ability to communicate its message off-campus. Instead, the district simply
seeks to prevent Defendants from disrupting construction and blocking access to Phillips
High’s stadium.
Moreover, Occupy has engaged in extensive online publication through Twitter
and Facebook. The movement even has its own website. Injunctive relief requiring
Defendants to physically vacate the area outside Phillips High’s stadium would not
impact such online channels of communication. Therefore, it is clear that Defendants
have ample alternative means of communicating their opinions and Defendants would not
be unduly prejudiced by the relief requested in the present Motion.
Public Interest
Finally, the public interest weighs in favor of granting Phillips Pubic injunctive
relief. The U.S. Supreme Court has recognized that schools maintain a significant interest
order and discipline. E.g, Bethel Sch. Dist. v. Fraser, 478 U.S. 675, 106 S. Ct. 3159
56
(1986). Although students are, of course, free to express themselves while at school,
speech that interferes with the rights of other students or that disrupts the educational
mission of the school is well within the school’s authority to regulate. Id.
Here, as discussed above, Occupy has caused a material disruption to the rights of
other students at Phillips High and poses a significant threat to the orderly operation of
Phillips High. Protests against the school’s sponsorship agreement have interrupted class
discussions, and increasingly aggressive tactics by Occupy threaten to escalate into
violence. Thus, the student body as a whole is served by ensuring that Occupy’s protests
take place off-campus.
As discussed above, Occupy has ample alternative channels for communication.
Specifically, Phillips Public’s Motion does not seek to limit Occupy’s ability to
communicate its message off campus. Thus, because Defendants will not be prejudiced,
and because the school possesses a significant interest in maintaining order and discipline
within its schools, the public interest weighs in favor of granting Phillips Public’s
Motion.
Moreover, the broader community will benefit from the construction of the new
stadium and field. The project will infuse income into a school district desperately in
need of funds and provide a safer facility for its athletes.
57
Defendants’ Motion for Temporary Restraining Order
This Court should also deny Defendants’ Motion for Temporary Restraining
Order. Defendants seek an order temporarily restraining the district from removing
Occupy flyers from school bulletin boards and prohibiting Phillips Public from otherwise
enforcing its school policies.
As discussed in greater detail below, Defendants cannot prevail on the merits of
their underlying claim because Occupy’s flyers are disruptive to school activities and thus
subject to regulation. Further, Defendants will not suffer irreparable harm in the absence
of injunctive relief, while granting Defendants' Motion would substantially prejudice
Phillips Public. Finally, the public interest is not served by preventing Phillips High from
enforcing school policy.
Substantial Likelihood of Success
Defendants cannot establish that they are likely to succeed on the merits of their
underlying First and Fourth Amendment claims.
Although courts have recognized that students and teachers do not give up their
constitutional rights when they enter school property, they have also acknowledged the
importance of maintaining order and discipline within public schools. E.g., Ruling on
Motion for Preliminary and Permanent Injunction, Nixon v. N. Local Sch. Dist. Bd. Of
Educ., 383 F.Supp.2d 965 (S.D. Ohio 2005). Accordingly, the courts have identified three
categories of speech that schools may constitutionally regulate for the purpose of
maintaining an orderly educational environment: (1) school-sponsored speech; (2) vulgar,
lewd, obscene, or plainly offensive speech; and (3) speech that causes a material
disruption to the rights of other students. Id.
58
Here, Defendants’ flyers are subject to regulation by Phillips High because they
have caused, and are likely to continue to cause, material disruption to school activities
and interference with the rights of other students. Occupy has repeatedly confronted nonmembers in loud arguments, disrupted ongoing classes and caused some students to be
late for class. Moreover, Defendants have essentially hijacked Chen’s U.S. History class
for their own purposes and interfered with the ability of the class to cover its planned
syllabus.
Students have also placed NFC stickers over the coin slots of vending machines,
thereby preventing access, and vandalized construction equipment with spray paint.
There is even some indication that one student may have hacked into the email accounts
of school and district officials.
As evidenced by Occupy’s increasingly aggressive actions and rhetoric, the
group’s protests are likely to become more disruptive with each day. Thus, Occupy’s
activities have caused material disruption to school activities, and the group is likely to
continue to do so. Therefore, Occupy’s speech is subject to reasonable regulation by
Phillips High.
Further, Phillips High’s rule regarding non-school sponsored speech is simply a
reasonable time, place, and manner restriction. Significantly, the policy is content-neutral
and is narrowly tailored to serve the interest of maintaining order within the school. It
does not impose unduly burdensome restrictions. Instead, it simply requires that students
produce and distribute materials in a manner that does not interfere with school activities,
in addition to identifying authorship and providing a copy to the school principal one day
in advance.
59
Thus, not only do Occupy’s flyers fall within one of the categories of speech that
may be justifiably regulated by schools (speech that is likely to interfere with the rights of
others), but Defendants also concede that the materials violate the school’s rule regarding
non-school sponsored publications. Specifically, Occupy’s flyers do not identify an
individual author (the flyers only identify the group as its source) and the group did not
provide Principal Gomez with copies of the flyers in advance.
Defendants argue that Phillips High has not uniformly enforced its policy
regarding non-school sponsored speech. However, there is no specific evidence
demonstrating that the school singled out Occupy for enforcement or that it failed to
remove literature attributed to other groups from Phillips High bulletin boards. In fact,
Jacobs’s statement notes that he regularly removed flyers from school bulletin boards
once per week. In this instance, the volume and excessively intrusive nature of Occupy’s
flyers necessitated more frequent rounds by the custodial staff at Phillips High; the school
did not single out Occupy for enforcement.
Regarding Defendants’ Fourth Amendment claim, the U.S. Supreme Court has
recognized that because of their unique educational role, schools are exempt from strict
adherence to the probable cause requirement for searches and seizures. N.J. v. T.L.O., 469
U.S. 325, 105 S.Ct. 733 (1984). Instead, the Supreme Court held that a search of a
student by a teacher or school official will be “justified at its inception” when there are
“reasonable grounds for suspecting that the search will turn up evidence that the student
has violated or is violating the law or the rules of the school.” Id.
Although the phrase “reasonable suspicion” eludes precise definition, courts have
described “reasonable suspicion” as being “more than an inchoate suspicion or a ‘hunch,’
60
but less than the heightened level of certainty required for probable cause.” State v. Seals,
11th Dist. App. No. 98-L-206 (1999).
In deciding to search the Defendants’ lockers and backpacks, Principal Gomez
relied on information he received from Mancuso. The non-uniformed officer regularly
attended Occupy meetings and was able to identify Defendants as leaders of “Occupy.”
Mancuso heard Occupy members discuss increasingly aggressive tactics, including
claims of hacking into various email accounts and plans to engage in various forms of
civil disobedience. Mancuso also cites conversations with group members, in which she
heard statements such as “[w]e should do whatever it takes” and “[s]ometimes you have
to break the law to get noticed.”
Moreover, Principal Gomez had recently witnessed an escalation in the
intrusiveness of Occupy’s tactics when the group erected a tent city outside of the
school’s football field the evening preceding the search. At the tent city, Mancuso claims
to have heard students discussing plans to block the stadium entrance to prevent
construction from proceeding.
In searching Defendants lockers and backpacks, Principal Gomez and Phillips
Public had reasonable grounds to suspect that the search would reveal evidence
pertaining to illegal activities and/or violations of school rules. Specifically, Principal
Gomez reasonably expected to uncover evidence related to unauthorized posting of nonschool sponsored publications, unauthorized use of school property by a non-curriculum
student group, and hacking into school and district email accounts. Although Mancuso
opines more evidence would have been required to obtain a search warrant based on
61
probable cause, Mancuso stated a belief that that Defendants were conspiring to engage
in illegal activities.
With specific regard to the confiscation of Defendants’ cellular phones, Phillips
Public acknowledges that because cellular phones may contain a large amount of
information, their users maintain a justifiably “higher level of privacy” than they would
in an ordinary closed container. State v. Smith, 124 Ohio St.3d 163, 2009-Ohio-6426.
However, Phillips Public notes that Principal Gomez has not, to date, searched
Defendants’ cellular phones. Instead, Phillips High has merely confiscated the phones,
pending further investigation into Occupy’s claims of hacking into school and district
email accounts. Principal Gomez possessed information linking Defendants’ cellular
phones to possible computer hacking activity. And because data can easily be deleted
from a phone by its owner, it was necessary to temporarily seize Defendants’ phones in
order to preserve relevant evidence.
Accordingly, Defendants will not succeed on the merits of their underlying First
and Fourth Amendment claims and the Court should, therefore, deny Defendants’ Motion
for Temporary Restraining Order
Irreparable Harm
Defendants also failed to demonstrate that they will suffer irreparable harm in the
absence of injunctive relief. As discussed above, Defendants possess ample alternative
channels for communication. Defendants may distribute flyers, hang posters, and
demonstrate their opposition to the NFC agreement off-campus. Therefore, Defendants
will not be prejudiced in the absence of injunctive relief.
62
Moreover, Phillips Public notes that Defendants’ interest ultimately lies in
whether the district proceeds with its sponsorship agreement as planned. As students,
Defendants do not have final authority to either bind the school to a contract or reject an
offer for corporate sponsorship. Instead, that authority rests with Phillips Public.
Accordingly, Defendants cannot establish irreparable harm and the Court should deny
Defendants’ Motion.
Prejudice to Third Parties
As noted above, Phillips High and Phillips Public will suffer irreparable harm
from continuing on-campus protests by its students. NFC has indicated that it would
likely incur additional costs due to increased security needs and insurance costs.
Moreover, Phillips High and Phillips Public will suffer harm to their reputations if
Occupy’s protests are allowed to continue on campus. Further, Phillips students and
athletes will lose the opportunity to use the improved field and NFC will lose the
publicity generated from a valid contract. Thus, an order specifically authorizing Occupy
to continue to disrupt activities at Phillips High would result in a significant harm to
Phillips Public, Phillips High, and NFC.
Public Interest
Finally, again, the public interest weighs in Phillips Public’s favor. Phillips High
and the district maintain a strong interest in maintaining order and discipline within the
school. And although this country celebrates the freedoms and rights its citizens have
under the First Amendment, the right to express those passions is subject to certain
narrow limitations. Here, Defendants’ speech has substantially interfered with the rights
of other students by repeatedly disrupting a myriad of school activities. Accordingly, the
63
public interest weighs against granting Defendants injunctive relief and this Court should
deny Defendants’ Motion for Temporary Restraining Order.
REQUEST FOR ORAL HEARING
Phillips Public respectfully requests an oral hearing on both the present Motion
and Defendants’ Motion for Temporary Restraining Order.
CONCLUSION
For the foregoing reasons, this Court should grant Phillips Public’s Motion for
Temporary Restraining Order and deny Defendants’ Motion for Temporary Restraining
Order.
Respectfully Submitted,
Attorney for Phillips Public
64
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy of Phillips Public’s Motion for
Temporary Restraining Order and Memorandum in Opposition to Defendants’ Motion for
Temporary Restraining Order was served upon counsel for Defendants on this 22nd day
of September, 2013.
Attorney for Phillips Public
65
IN THE COURT OF COMMON PLEAS
PHILLIPS COUNTY, OHIO
PHILLIPS SCHOOL DISTRICT,
Plaintiff,
v.
JESSE SPRINGFIELD, ET AL.,
Defendants.
:
:
:
:
:
:
:
:
:
Case No. 001-2014
Judge Bell
DEFENDANTS’ MOTION FOR TEMPORARY RESTRAINING ORDER AND
MEMORANDUM IN OPPOSITION TO PLAINTIFF’S MOTION FOR
TEMPORARY RESTRAINING ORDER
Now come Defendants Jesse Springfield, Storm Jackson, Alex Leslie, Terry Silva
and Trilby Van Acker (collectively “Defendants”), and respectfully move the Court
pursuant to Civ.R. 65 for an order temporarily restraining the Phillips School District
(“the District”) from conducting further searches of Defendants’ lockers and backpacks
and from confiscating leaflets, cellular phones, and other material related to the Occupy
group at Phillips High School (“Phillips”). The District’s action in prohibiting the posting
of Occupy materials is a content-based prior restriction on expression and thus violates
the First Amendment of the United States Constitution. Further, the District’s actions in
searching Defendants’ lockers and backpacks and in seizing cellular phones violates the
Fourth Amendment of the United States Constitution.
Additionally, Defendants hereby oppose the District’s Motion for Temporary
Restraining Order, in which the District seeks to evict Occupy from Freedom Field.
Occupy is a curriculum-related student group and is thus authorized to use school
facilities for meetings and activities under the District’s Student Handbook.
66
The grounds for this Motion, and for Defendants’ opposition to the District’s
Motion, are set forth in greater detail in the Memorandum in Support below.
Respectfully Submitted,
Counsel for Defendants
67
MEMORANDUM IN SUPPORT
I. Statement of Facts
For more than seventy years, the stadium at Phillips has been known as Freedom
Field, in honor of our nation’s military veterans. However, several months ago—
following closed door meetings and without consultation with students, teachers, or the
community—Principal Gomez and the District agreed to a sponsorship deal with
National Fructose Corporation (“NFC”). Pursuant to the sponsorship contract, the District
agreed to rebrand Freedom Field as “Fructose Field” and grant NFC the exclusive right to
snack and soft drink sales on campus. In exchange, NFC agreed to fund installation of an
artificial turf field and to contribute a modest 2% of its snack and soft drink sales to the
District.
After learning of NFC’s sponsorship agreement with the District, students and
teachers at Phillips quickly began expressing their concern about the propriety of the
agreement. Several student groups opposed corporate sponsorship of the school, noting
that NFC’s products are notoriously unhealthy. Specifically, the students cited studies
demonstrating that sugar-laden foods and drinks like those sold by NFC are linked to
increased rates of childhood obesity and juvenile-onset diabetes.
As a part of U.S. History class, Alex Chen, a teacher at the school since 2010,
regularly leads discussions regarding various contemporary social and political issues.
Topics covered in these discussions vary widely, but include the rise of corporate power
in politics and the balance between organized government and individual privacy. For
example, at one such discussion, students debated Citizens United v. FEC, 558 U.S. 310,
68
130 S. Ct. 876 (2010), a case in which the U.S. Supreme Court held that the First
Amendment’s protections extend to corporate “speech.”
Unsurprisingly, following announcement of the school’s sponsorship contract,
discussions in Chen’s U.S. History class began to revolve around the NFC controversy.
During these discussions, several students, including Defendants, reiterated their
concerns regarding the unhealthy nature of NFC’s products. In addition, both students
and Chen expressed concern that rebranding Freedom Field as Fructose Field would not
demonstrate an appropriate level of respect for our nation’s veterans.
As a result of these in-class discussions, Chen arranged a meeting between
students opposed to the NFC deal, Principal Gomez, and Phillips School District’s
superintendent. Although both Principal Gomez and the District’s superintendent
attended the meeting, the students did not feel their concerns were adequately addressed
by the District administration. At the meeting, Principal Gomez and the superintendent
simply informed the students that the sponsorship contract was already a “done deal” and
that the project would proceed as planned. The District’s administration summarily
dismissed the students’ concerns, stating flatly that they didn’t understand “how the real
world worked.”
Following what they perceived as a sham meeting with the District
administration, students opposed to the NFC sponsorship deal began to organize into
what would later become known as the Occupy group. The Occupy group at Phillips is
modeled after those formed in numerous cities throughout the country during the Occupy
Wall Street movement. Like these other “Occupy” groups, Occupy at Phillips does not
69
designate any particular individual as its leader. Instead, the group reaches decisions by
consensus.
Shortly after its formation, the Phillips Occupy group created an online petition in
opposition to the NFC deal, which garnered over 1,500 signatures in just one week.
Additionally, the group created and distributed two flyers. One flyer contained facts
about NFC and the known health risks associated with its product, while the other was
simply a general protest flyer. Consistent with the group’s consensus decision-making
structure, the flyers both identified “Occupy” as the source of the material.
Significantly, Occupy’s printed materials were created and distributed in
accordance with school custom and policy. Phillips’s student handbook states that nonschool sponsored publications must be printed outside of school and prohibits the use of
school supplies or equipment in the creation or printing of materials. Further, school
policy requires that materials identify the author and limits distribution of materials on
school premises to before and after school only. In this instance, all materials were
created off campus, distribution of materials did not occur during the school day, and the
two flyers both identified the Occupy group as their source. Although Occupy did not
obtain approval from Principal Gomez prior to posting the flyers, the school’s preapproval requirement had not been previously enforced against other student groups.
As Occupy gathered momentum, Principal Gomez and the District became
increasingly heavy-handed in their approach to Occupy’s opposition of the NFC
sponsorship deal. Principal Gomez ordered Pat Jacobs, one of the school’s custodians, to
circulate through the school three times per day and remove Occupy flyers from walls
and bulletin boards. Jacobs’ normal practice had been to remove flyers only at the end of
70
each week, and to only remove those flyers that had become outdated, promoted
commercial ventures, or had been vandalized.
Additionally, Principal Gomez ordered Jacobs to install security cameras in the
hallways, cafeteria, and every room containing a school copier. And further, the District,
with the cooperation of the local police department, enlisted an undercover police officer,
Casey Mancuso, to “infiltrate” Occupy.
None of the District’s “investigative” efforts, however, uncovered any specific
evidence of illegal activity. At worst, the District’s undercover officer overheard
members of the Occupy group speaking in general terms regarding their opposition to the
NFC sponsorship deal. None of the statements amounted to more than ordinary youthful
boasting and exaggeration. Although Mancuso cites vague references to non-specific
disruptive activity, such as one student’s statement that “We should do whatever it
takes,” Mancuso concedes that additional evidence would have been required at that time
to justify a search warrant or criminal charges.
Further, although students occasionally engaged in “vigorous debates” regarding
the NFC deal in school hallways, any resulting disruptions were no different than those
that frequently occur in a crowded public high school and there is no specific evidence
that the students involved were members of the Occupy group. Similarly, some stickers
bearing NFC’s logo were found placed over the coin slots of some vending machines, but
the stickers could not be attributed to Occupy or any other specific source.
Mancuso, the District’s undercover officer, also created and posted “Occupy”
flyers. Mancuso states the copied template was provided by Defendant Jesse Springfield
and Mancuso posted flyers detailing significant campaign contributions that NFC made
71
to members of the District’s school board. Thus, some of the “disruptive” material the
District cites in its complaint may not have been posted by Occupy at all.
In the following weeks, Principal Gomez became more and more concerned that
the students’ protest would anger NFC and threaten its deal with the District. Principal
Gomez even went so far as to prohibit Phillips’ student newspaper from accepting an
article that had been submitted for publication, simply because the article was critical of
the NFC deal. The school’s newspaper generally reports on school events, including
sports and dances. In this instance, however, Principal Gomez rejected the article about
the NFC deal because of disagreement with the specific viewpoint expressed by its
author, Defendant Jesse Springfield.
Eventually, Principal Gomez sent a warning letter to each of the Defendants in
this case. The letter stated that Occupy was henceforth prohibited from meeting or
distributing flyers on school property and emphasized that the school would take “strong
action” against any student engaged in activity opposing the NFC deal.
As a result of the District’s escalation, Occupy group members held an emergency
meeting at which they decided to construct a tent city just outside the fence that
surrounds Freedom Field. (See Exhibit C). The group then created and distributed a flyer,
entitled “Occupy the Field,” inviting others to join. The flyer stated in full as follows:
OCCUPY the FIELD
----STUDENTS JUST SAY NO TO---




Corporate Control of Phillips H.S.
School District Sponsored Obesity & Diabetes
NFC Unfair Labor Practices
Secret Fat Cat Deals & Bribery
Trading Student Health for Profits
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

Privatizing Public Schools
Principals Without Principles
JOIN US
STOP THE NFC DEAL
SAVE FREEDOM FIELD
FB occupythefield
occupythefield.org
#occupythefield
(Exhibit B).
That evening, approximately 40 students gathered in the public area outside the
gates of Freedom Field. Chen, who had since become Occupy’s faculty advisor, also
attended the meeting. The students posted signs containing various slogans at the tent
city:








NFC Diabetes Clinic
Obesity is Cool—NFC
Fat Students—Fat Profits
Stadium for Sale to Highest Bidder
Occupy Freedom Field
Money is Not Speech
Support NFC Workers
NFC Diabetes Delivery System
At no time did the students enter Freedom Field itself. Further, although the
District’s undercover informant noted that some students suggested behavior that went, in
Mancuso’s opinion, beyond civil disobedience, Mancuso concedes that Occupy did not
reach a consensus decision regarding future tactics. Instead, Occupy adopted only four
decidedly non-violent rules: (1) no drugs, (2) no alcohol, (3) no weapons, and (4) no
violence.
The next morning, immediately following the “tent city” event, Principal Gomez
ordered Jacobs and Mancuso to search Defendants’ lockers. The District seized cellular
73
phones, books, leaflets, and other personal belongings. Although some personal
belongings have since been returned, the District has not yet returned Defendants’
cellular phones or leaflets. Further, the District has attempted to obtain consent from
Defendants to search their cellular phones, but Defendants have not, to date, given the
District such authorization.
Shortly after searching through their lockers and seizing their belongings, the
District then filed the present complaint against Defendants seeking to evict the Occupy
student group from the area outside Freedom Field. Defendants filed a counterclaim
against the District, arguing that the District’s actions in searching Defendants’ lockers
and backpacks, and in prohibiting the posting of flyers and other material, violated the
First and Fourth Amendments of the United States Constitution.
II. LAW AND ARGUMENT
A temporary restraining order is a form of injunctive relief intended to prevent the
applicant from suffering irreparable harm. Coleman v. Wilkinsin, 147 Ohio App.3d 357
(10th Dist. 2002). In determining whether to grant a temporary restraining order, a court
must evaluate four factors: (1) whether the movant has a substantial likelihood of success
on the merits of his underlying claim, (2) whether the movant will suffer irreparable harm
if injunction relief is not granted, (3) whether third parties will suffer harm if the
temporary restraining order is granted, and (4) whether the injunction is in the public
interest. Id.
Here, Defendants have satisfied all four prongs and the Court should accordingly
grant Defendants’ Motion for Temporary Protective Order. First, the District’s action in
prohibiting posting of leaflets related to Occupy at Phillips constitutes a content-based
74
prior restriction on expression in violation of the First Amendment of the United States
Constitution. The District’s actions in searching Defendants’ lockers and backpacks and
in seizing Defendants’ cellular phones also violate the Fourth Amendment of the United
States Constitution. Second, Defendants will suffer irreparable harm if they are not
permitted to express their viewpoint and if the deal with NFC proceeds as planned. Third,
by contrast, the District is not prejudiced by allowing Defendants to express their
opinions. And fourth, the public interest is served by encouraging the free flow of ideas.
Therefore, the Court should grant Defendants’ Motion and issue an order temporarily
restraining the District from conducting further searches of lockers and backpacks, and
from confiscating leaflets, cellular phones, and other material related to the Occupy group
at Phillips
This Court should also deny the District’s Motion seeking to evict Occupy from
the public area outside of Freedom Field. The District has failed to meet any of the four
prongs necessary to obtain a temporary restraining order. Occupy is a curriculum-related
group and is thus permitted to use public areas of the school’s facility for meetings and
activities pursuant to the school’s Student Handbook. Further, the District will not suffer
irreparable harm in the absence of injunctive relief. By contrast, students will be
prejudiced if not permitted to express their ideas and if the NFC deal proceeds as
planned. And finally, again, the public interest is served by encouraging the free flow of
ideas.
A. Defendants’ Motion for Temporary Restraining Order
This Court should grant Defendants’ Motion for Temporary Restraining Order.
Defendants have demonstrated a substantial likelihood of success on the merits, that they
75
will suffer irreparable harm in the absence of injunctive relief, that the District will not be
prejudiced as a result of the injunction, and that the public interest weighs in their favor.
1. Substantial Likelihood of Success – The District’s action in prohibiting the
posting of leaflets and other material violates the First Amendment of the
United States Constitution
The District’s actions in prohibiting the posting of leaflets and other material
related to Occupy at Phillips constitute a content-based prior restraint on expression. Its
actions thus violate the First Amendment of the United States Constitution, as made
applicable to the states through the Fourteenth Amendment.
“[A]s a general matter, the First Amendment means that government has no
power to restrict expression because of its message, its ideas, its subject matter, or its
content.” Ashcroft v. American Civil Liberties Union, 535 U.S. 564, 122 S.Ct. 1700
(2002) (internal quotation marks omitted). Thus, the Constitution “demands that contentbased restrictions be presumed invalid.” Ashcroft v. American Civil Liberties Union, 542
U.S. 656, 124 S.Ct. 2783 (2004).
Moreover, although schools do have an interest in maintaining a suitable
environment for education, courts have routinely held that students (and teachers) do not
shed their constitutional rights at the schoolhouse gates. E.g., Ruling on Motion for
Preliminary and Permanent Injunction, Nixon v. N. Local Sch. Dist. Bd. Of Educ., 383
F.Supp.2d 965 (S.D. Ohio 2005). In balancing a school’s interest in maintaining order
with the individual rights of students, courts have thus carved out three narrow schoolspecific categories of speech that educational institutions may justifiably regulate on the
basis of content: (1) school-sponsored speech; (2) vulgar, lewd, obscene, and plainly
76
offensive speech; and (3) speech that causes a material disruption with other students’
rights. Id. (internal citations omitted).
Regarding lewd, obscene, and plainly offensive speech, the U.S. Supreme Court
has held, for example, that sexually explicit content may be “plainly offensive” speech
and, therefore, schools may prohibit students from giving sexually-explicit speeches
during school assemblies. Bethel Sch. Dist. v. Fraser, 478 U.S. 675, 106 S.Ct. 3159
(1986). In so holding, the Supreme Court acknowledged the “undoubted freedom to
advocate unpopular and controversial views in schools and classrooms,” but noted that
“[e]ven the most heated political discourse in a democratic society requires consideration
for the sensibilities of the other participants and audiences.” Id.
By contrast and regarding speech likely to cause a material disruption with other
students’ rights, the Supreme Court has held that wearing black armbands in protest of
the Vietnam War alone does not constitute disruptive behavior and thus may not be
constitutionally prohibited by the school. Tinker v. Des Moines Indep. Cmty. Sch. Dist.,
393 U.S. 503, 89 S.Ct. 733 (1969). Although some disruptive behavior may have
occurred at the school in connection with student protests against the Vietnam War, the
Court noted that “the wearing of armbands in the circumstances of this case was entirely
divorced from actually or potentially disruptive conduct by those participating in it.” Id.
(emphasis added). The Court found wearing armbands was akin to “pure speech” and that
the school could not, therefore, constitutionally prohibit the activity. Id.
Here, the parties concede that the flyers posted by Occupy are not schoolsponsored speech. Further, there is no evidence that the flyers are lewd, obscene, or
otherwise plainly offensive. And finally, the flyers at issue are not actually or potentially
77
disruptive to other students’ rights. There is no evidence that Occupy has interfered with
or is likely to interfere with the educational activities of other students at Phillips.
Although discussion of the NFC deal has occurred during discussions in Chen’s U.S.
History class, Chen’s statement indicates that such discussions relate to the course
curriculum and thereby further the school’s educational mission rather than detract from
it.
Moreover, as in Tinker, to the extent that some minor disruptions may have
occurred, the disruptions are wholly divorced from Occupy’s activities. For example, the
NFC stickers placed over the coin slots of vending machines may indeed constitute a
mild disruption for some students at Phillips. However, there is no evidence that
members of the Occupy group at Phillips placed the stickers there. And significantly, the
flyers themselves bear no connection with the disruption at issue here; instead, the
disruption is caused by the stickers.
Similarly, although there has been some vague indication that an unidentified
student “hacked” Principal Gomez’s email, there is no specific indication that he or she
has actually done so, or that the statements amounted to more than youthful boasting.
Moreover, there is no indication that the student is, in fact, connected with Occupy.
Accordingly, the Occupy flyers at issue in this case do not fall within any of the
three narrow school-specific categories of speech that educational institutions may
constitutionally restrict.
The school’s prohibition of the posting of leaflets related to Occupy also does not
constitute a valid time, place, and manner restriction. Courts have long recognized that
the government may impose certain content-neutral time, place, and manner restrictions
78
on speech under specific narrow circumstances. Clark v. Community for Creative NonViolence, 468 U.S. 288, 104 S.Ct. 3065 (1984). In Clark, the Supreme Court stated in
pertinent part as follows
Expression, whether oral or written or symbolized by conduct, is subject
to reasonable time, place or manner restrictions. * * * [R]estrictions of this
kind are valid provided that they are justified without reference to the
content of the regulated speech, that they are narrowly tailored to serve a
significant governmental interest, and that they leave open ample
alternative channels for communication of the information.
Id. (emphasis added).
Thus, where the government possesses a significant interest—for example, in
protecting public safety or preventing excessive noise—it may impose reasonable
restrictions on the time, place, and manner of expression. Significantly, however, the
restriction must be narrowly tailored to serve the specific governmental interest and be
content-neutral.
Here, even though the school’s rule regarding the posting of non-school
sponsored publications is content-neutral on its face, Principal Gomez and the District
have enforced the regulation in non-neutral manner. Principal Gomez specifically ordered
Jacobs to remove Occupy leaflets three times per day. By contrast, Jacobs ordinarily
removed old flyers only once per week, and even then, only those flyers that had become
outdated, promoted commercial ventures, or had been vandalized. Further, although the
District cites Occupy’s failure to gain prior approval from Principal Gomez before
posting the leaflets, the pre-approval requirement had never been enforced with other
groups previously. Thus, as applied to Occupy, the school’s rule regarding the posting of
non-school sponsored publications is not content-neutral and, therefore, is not a valid
time, place, and manner restriction.
79
2. Substantial Likelihood of Success – The District’s actions in searching the
Defendants’ lockers and backpacks and in confiscating cellular phones violate
the Fourth Amendment of the United States Constitution
In addition to its unlawful prohibition on the posting of Occupy leaflets, the
District’s actions in searching lockers and backpacks and in confiscating cellular phones
violate the Fourth Amendment of the United States Constitution, as made applicable to
the states through the Fourteenth Amendment.
Generally, the Fourth Amendment prohibits warrantless searches and seizures in
the absence of probable cause that the suspect has violated or is violating the law. See
N.J. v. T.L.O, 469 U.S. 325, 105 S.Ct. 733 (1984). Courts have recognized, however, that
schools possess an interest in maintaining order in the classroom and are thus not bound
by strict adherence to the requirement that searches be based on probable cause. Id.
Instead, the U.S. Supreme Court has held that “[u]nder ordinary circumstances, a search
of a student by a teacher or other school official will be ‘justified at its inception’ where
there are reasonable grounds for suspecting that the search will turn up evidence that the
student has violated or is violating either the law or the rules of the school.” Id. (emphasis
added). Thus, in the context of a school, administrators are permitted to conduct a search
based on the “reasonable suspicion” of illicit activity rather than on “probable cause.”
Although the phrase “reasonable suspicion” eludes precise definition, courts have
described it as “requiring more than an inchoate suspicion or a ‘hunch,’ but less than the
heightened level of certainty required for probable cause.” State v. Seals, 11th Dist. App.
No. 98-L-206 (1999).
Additionally, and significantly, the scope of a search based on reasonable
suspicion is not unlimited. In T.L.O., the U.S. Supreme Court noted that a search will
80
only be permissible if “its scope when the measures are adopted are reasonably related to
the objectives of the search and not excessively intrusive in light of the age and sex of the
student and the nature of the infraction.”
Here, searches of Defendants’ lockers and backpacks and seizures of cellular
phones were not supported by a “reasonable suspicion” that Defendants were engaging in
illegal activity or violating school rules. Further, even if there was reasonable suspicion
sufficient to justify the search, the scope of the intrusion was excessive in light of the
nature of the alleged infraction.
As noted above the District’s undercover agent did not believe Defendants had
engaged in illegal activity. Further, Mancuso’s opinion that Defendants “were conspiring
to engage in illegal activities” was based solely on speculative and vague statements
made by minor children. None of the statements upon which Mancuso based this opinion
were attributed specifically to Defendants. Additionally, statements such as “we should
do whatever it takes” are nothing more than youthful boasting and exaggeration. As
Jacobs noted, high school students often use threatening language in talking amongst
themselves, but rarely follow through.
The speculative and vague statements the District cites as the basis for its
“reasonable suspicion” of illegal activity fail to rise to more than a “hunch.” The searches
of Defendants’ lockers and backpacks and seizures of cellular phones were not supported
by a reasonable suspicion of illicit activity and, therefore, violated the Fourth
Amendment of the United States Constitution.
Moreover, even if the facts and circumstances at the time of the searches and
seizures were sufficient to support a reasonable suspicion of illicit activity, the scope of
81
the intrusion was excessive in light of the nature of the alleged violation. At most, the
Principal suspected that Defendants had violated two school rules: (1) the rule regarding
non-school sponsored publications, and (2) the rule regarding the use of school facilities
by curriculum-related student groups. Neither alleged violation constitutes any threat to
the health or well-being of students, teachers, or administrators at Phillips. Likewise, the
alleged violations did not disrupt the educational mission of the school. To the contrary,
Chen indicated that Occupy furthers students’ understanding of the civil rights movement
and of politics.
The District’s searches of Defendants’ lockers and backpacks and seizures of
cellular phones represent a significant intrusion on Defendants’ privacy. The Ohio
Supreme Court has recently recognized that “[a]lthough cell phones cannot be equated
with laptop computers, their ability to store large amounts of private data gives their users
a reasonable and justifiable expectation of a higher level of privacy in the information
they contain.” State v. Smith, 124 Ohio St.3d 163, 2009-Ohio-6426 (emphasis added).
Further, as noted above, students and teachers do not shed their constitutional rights at the
schoolhouse door. Nixon, 383 F.Supp.2d 965. Thus, by rummaging through Defendants’
personal belongings, the District subjected Defendants to significant intrusions that were
excessive in light of the alleged violation. Accordingly, the District’s actions in searching
Defendants’ lockers and backpacks and in seizing their cellular phones violate the Fourth
Amendment of the United States Constitution.
3. Irreparable Harm – Defendants will suffer irreparable harm in the absence of
injunctive relief
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Defendants will suffer irreparable harm if this Court does not grant injunctive
relief. Specifically, the opportunity for Defendants to express their opposition to the NFC
sponsorship deal essentially ends if and when the NFC deal proceeds as planned.
Although Defendants, as students at Phillips, cannot ultimately control the
District’s decision whether or not to proceed with the deal, Defendants maintain a
significant interest in the expression of their opposition. Defendants seek the opportunity
to demonstrate their concern that NFC’s products are not suitable for marketing at a
public high school, as well as demonstrate their respect for our nation’s veterans through
support of the name “Freedom Field.”
If and when the NFC deal proceeds as planned, the existing Freedom Field will be
demolished and rebranded as Fructose Field. Further, NFC will have erected concession
stands and vending machines throughout Phillips’ campus. At that time, Occupy will
have lost its opportunity to effectively voice its opposition.
Because Defendants’ interest in expressing its opinion cannot be effectively
vindicated after the NFC deal is implemented, the Court should grant this Motion and
issue an order temporarily restraining the District from prohibiting posting of flyers and
other material related to the Occupy group at Phillips.
4. Prejudice to Others – The District will not be prejudiced by the temporary
restraining order
By contrast, the District will not be prejudiced by allowing the students to express
their views. Neither posting of flyers nor presence of a tent city will prevent the District
from carrying out its sponsorship agreement with NFC. Although NFC has expressed its
frustration at the student opposition to the deal, the company has indicated that “NFC has
gone too far down this road” to withdraw from the project at the present time. Further,
83
Lee Martin’s statement indicates that, at worst, the tent city will result in NFC incurring
additional costs as a result of having to work around the students. Again, Defendants’
speech would not prevent NFC from carrying out its contract with the District and any
monetary damages incurred as a result of Defendants and Occupy could be addressed by
this Court at a later date if the District ultimately prevails in its claim.
Accordingly, any harm to the District that would be caused by allowing
Defendants to express their opinion is comparatively minimal relative to the harm that
Defendants would suffer in the absence of injunctive relief. Therefore, the Court should
grant this Motion and issue a temporary restraining order.
5. Public Interest – The public interest weighs in favor of allowing Defendants
and other students opposed to the NFC deal to express their views
The public interest weighs in favor of allowing Defendants to express their views.
In analyzing the First Amendment, the U.S. Supreme Court has stated as follows:
At the heart of the First Amendment lies the principle that each person
should decide for him or herself the ideas and beliefs deserving of
expression, consideration, and adherence. Our political system and
cultural life rest upon this ideal. Government action that stifles speech on
account of its message, or that requires the utterance of a particular
message favored by the Government, contravenes this essential right.
Laws of this sort pose the inherent risk that the Government seeks not to
advance a legitimate regulatory goal, but to suppress unpopular ideas or
information or manipulate the public debate through coercion rather than
persuasion. These restrictions ‘raise the specter that the Government may
effectively drive certain ideas or viewpoints from the marketplace.’ For
these reasons, the First Amendment, subject only to narrow and wellunderstood exceptions, does not countenance governmental control over
the content of messages expressed by private individuals.
Turner Broad. Sys. v. FCC, 512 U.S. 622, 641, 114 S. Ct. 2445 (1994) (internal citations
omitted).
84
As discussed above, Defendants’ expression of their views does not fall within
any of the narrow exceptions to the First Amendment’s protection of free speech. The
flyers distributed by Occupy are not school-sponsored speech. Likewise, they are not
vulgar, lewd, obscene, or plainly offensive. Finally, Defendant’s speech has not caused
and is not likely to cause disruption of Phillips’s educational mission or the rights of
other students. To the contrary, the Occupy group at Phillips furthers the school’s
educational mission by enriching the students’ understanding of civil rights and of our
nation’s political system.
As with the exceptions to the First Amendment, the Supreme Court has also noted
that exceptions to the Fourth Amendment’s protections regarding searches and seizures
must be “jealously and carefully drawn.” Jones v. U.S., 357 U.S. 493, 499, 78 S. Ct. 1253
(1958).
Here, the District’s searches and seizures were not based upon a reasonable
suspicion of illicit activity, their intrusion on Defendants’ privacy violated the Fourth
Amendment. Moreover, even if the facts and circumstances surrounding the opposition to
the NFC deal could have given rise to a reasonable suspicion of illegal activity or a
violation of school rules, the scope of the intrusion was excessive in the context of the
alleged violation. At its core, the District’s allegations against Defendants amount to
violations of the school’s rule regarding the posting of non-school sponsored publications
and its rule regarding the use of school facilities by curriculum-related student groups.
These violations, even if taken as true, do not endanger the safety or well-being of
students or teachers, nor do they interfere with the educational mission of the school.
Accordingly, the search—which involved school officials rummaging through
85
Defendants’ lockers, backpacks, and other personal belongings—was excessive in light
of the alleged violation.
Defendants have established substantial likelihood of success on the merits of
both their First and Fourth Amendment claims, that they will suffer irreparable harm in
the absence of injunctive relief, that harm to others as a result of the injunction will be
comparatively slight, and that the public interest weighs in their favor. Accordingly, this
Court should grant Defendants’ Motion and issue an order temporarily restraining the
District from conducting further searches of lockers and backpacks and from confiscating
leaflets, cellular phones, and other material related to the Occupy group at Phillips.
B. The District’s Motion for Temporary Restraining Order
This Court should also deny the District’s Motion for Temporary Restraining
Order. The District has failed to establish a substantial likelihood of success on the
merits, as the Occupy group at Phillips is a curriculum-related student group. As a
curriculum-related group, Occupy is permitted to use school facilities for meetings and
activities pursuant to the school’s Student Clubs Rule. Further, for the same reasons as
discussed above, the harm to the District as a result of Defendants’ presence at Freedom
Field would be relatively slight compared to the harm Defendants would suffer if not
permitted to express their views. Finally, the public interest again weighs in favor of
Defendants.
1. Substantial Likelihood of Success – The Occupy group at Phillips is a
curriculum related group and is thus permitted to use school facilities for
meetings and activities
Under the Equal Access Act, public schools are required to provide access to
school premises for all non-curriculum related groups—regardless of religious, political,
86
or philosophical viewpoint—if the school maintains its campus as a “limited open
forum.” 20 U.S.C. 4071(a). Schools can, however, essentially opt out of requirement by
prohibiting all non-curriculum related groups from using school premises for meetings
and activities. 20 U.S.C. 4071(b). In this instance, pursuant to its Student Clubs Rule,
Phillips has elected to opt out of the Equal Access Act’s requirement regarding noncurriculum related group by prohibiting all such groups from using school premises.
Nonetheless, as Phillips does provide access to school premises for curriculumrelated groups, the District still must not discriminate against curriculum-related groups
on the basis of religious, political, or philosophical viewpoint. Here, Occupy at Phillips is
a curriculum-related group and is thus entitled to access school premises for its meetings
and activities, including the tent city outside of Freedom Field.
The U.S. Supreme Court has stated that a group is curriculum related if it falls
within any of four categories: (1) the subject matter of the group is actually taught in a
regularly offered course; (2) the subject matter of the group concerns the body of courses
as a whole; (3) if participation in the group is required for a particular course; or (4) if
participation in the group results in academic credit. Bd. of Educ. v. Mergens, 496 U.S.
226, 110 S. Ct. 2356 (1990). In the present case, the subject matter of the Occupy
group—civil rights and corporate influence on politics—is actually taught at Phillips.
Thus, the group is “curriculum-related.”
As Chen explains, students discuss “the Civil Rights movement and Martin
Luther King Jr.” in U.S. History Class. Chen states that in this year’s class discussion on
the topic, students asked whether “similar techniques as those used by the civil rights
protesters could be used to stop the NFC contract.” Thus, the Occupy group furthers
87
students’ understanding of the civil rights movement through the application of its
principles to relevant contemporaneous issues; in this case, the school’s deal with NFC.
Similarly, Chen’s History class also discusses the increasing role corporations
play in the political realm. Again, this year’s in-class discussion on the topic, by natural
extension, involved dialog regarding NFC’s sponsorship deal with the District. And thus,
the Occupy group’s activities also relate to the corporate politics component of Chen’s
U.S. History class.
The Occupy group at Phillips satisfies the Mergens test as a “curriculum-related
group.” Because Phillips does allow curriculum-related groups access to school facilities
for meetings and activities, it cannot discriminate against a particular group based on the
group’s viewpoint. And accordingly, the Occupy group at Phillips is entitled to access the
public area outside of Freedom Field for its meetings and activities, including the tent
city.
2. Irreparable Harm – The District will not suffer irreparable harm in the absence
of injunctive relief
As discussed above, the District will not suffer irreparable harm by allowing the
students to express their views. As indicated in Martin’s statement, the presence of a tent
city outside of Freedom Field will not prevent the District from carrying out its
sponsorship agreement with NFC. NFC has “gone too far down this road” to withdraw
from the project. At worst, the tent city will result in NFC incurring additional costs as a
result of having to work around the students. Thus, at worst, Defendants’ speech would
result in only monetary damages, if any, which could be addressed by this Court at a later
date if the District ultimately prevails at trial.
88
The District has not demonstrated irreparable harm sufficient to warrant a
temporary restraining order.
3. Prejudice to Others – Defendants will be significantly prejudiced if not allowed
to express their views prior to the completion of the NFC deal with the District
As noted above, Defendants will suffer significant harm if this Court grants the
District’s Motion. Specifically, the opportunity for Defendants to express their opposition
to the NFC sponsorship deal essentially ends if and when the NFC deal proceeds as
planned.
If and when the NFC deal proceeds as planned, the existing Freedom Field will be
demolished and rebranded as Fructose Field. Further, NFC will have erected concession
stands and vending machines throughout Phillips’s campus. At that point in time, Occupy
will have lost its opportunity to effectively voice its opposition.
Accordingly, the harm to Defendants as a result of being evicted from the area
outside of Freedom Field would be relatively great as compared to the harm the District
would suffer if the Court denies the District’s Motion.
4. Public Interest – The public interest weighs in favor of allowing Defendants to
express their views
Again, the public interest weighs in Defendants’ favor. The free exchange of ideas
is a fundamental component of our nation’s democracy. Here, the District seeks to stifle
the views of those opposed to a contract the District agreed to behind closed doors and
without consultation with students, parents, or teachers. Moreover, the actions of the
Occupy group at Phillips are not disruptive and do not threaten the rights of other
students or teachers.
89
Further, the concerns Occupy raises—the propriety of corporate sponsorship of a
public high school and health risks associated with marketing sugar-laden foods to
children—are important societal issues. To stifle discussion of such issues at the ground
level (i.e., amongst the students themselves) would cut against the strong public interest
in fostering the free exchange of concepts and ideas.
C. Request for Oral Hearing
Defendants respectfully request an oral hearing on the present Motion and in
opposition to the District’s Motion for Temporary Restraining Order.
D. Conclusion
For the foregoing reasons, this Court should grant Defendants’ Motion for
Temporary Restraining Order and deny the District’s Motion for Temporary Restraining
Order.
Respectfully Submitted,
Counsel for Defendants
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CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy of the Defendants’ Motion for
Temporary Restraining Order and Memorandum in Opposition to Plaintiff’s Motion for
Temporary Restraining Order was served upon counsel for the Phillips School District on
this 22nd day of September, 2014.
Attorney for Defendants
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1
STATEMENT OF JAIME GOMEZ
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Principal - Plaintiff
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I have been with Phillips School District for nearly 30 years. Because of my long
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tenure, I have developed good relationships with other school administrators, the
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district’s leadership, the community, and, most importantly, the students. I believe I have
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earned their respect as a fair and principled principal. I’m never offended when a student
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calls me “Dr. J”. It’s an honor.
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Although I am an Ohio native, I earned my undergraduate and graduate degrees
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from Harvard University. Being a young adult in Boston in the late 1960s was something
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else. The world was changing fast and dramatically. My generation did not stand on the
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sidelines and passively watch the world change. We wanted to be part of that change and
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affect society, government, and technology in a positive way. We wanted a peaceful and
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understanding world above all. It was a social consciousness for a better world that
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moved us. While at Harvard, I even participated in the anti-war takeover of University
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Hall. I am not sure we accomplished much, but it certainly felt like we were changing the
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world.
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Our school district, like many others around the state, has faced tough economic
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years. Students’ and faculty’s needs are great, and resources are increasingly scarce. So,
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when one of my old Harvard classmates, Lee Martin, an executive with the National
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Fructose Company (NFC), approached me about NFC’s interest in investing in the
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community and supporting our school, I jumped on the opportunity. NFC is a Fortune
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500 company that wants to put firm roots in, and truly be a contributing member of, our
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community. Given the many news reports about companies that do not care about the
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community or the legacy they leave behind, I am inspired by NFC and admire its desire
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to invest so significantly in our school. It would be foolish to pass up on such a great
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opportunity.
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I helped broker the deal with NFC, acting as a liaison between Lee Martin and the
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school board members, and most notably my neighbor Stanley Michaels, who is the
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school board president. Really, it was a simple venture. NFC agreed to underwrite the full
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cost—including building permits, artificial turf, labor, job materials and supplies, and
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debris disposal—of installing the artificial turf on the high school stadium field. In
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exchange, NFC gets naming rights to the stadium and the exclusive right to sell and
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advertise soft drinks on campus, all for a period of fifteen years.
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None of these requests appeared unreasonable. Many college and pro stadiums are
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named after the company who underwrote construction. Considering NFC is investing so
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significantly in our school, renaming the field Fructose Field appears reasonable. It is
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important to note that the agreement with NFC puts some limits on suitable advertising at
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the stadium—no alcohol or tobacco products may be promoted consistent with school
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district policy. Furthermore, NFC also agreed to maintain and service all vending
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machines—this will no longer be a district responsibility—since NFC will be managing
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the products sold at the machines. Although small, this is a cost savings measure for the
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district. Furthermore, the school district receives a modest 2% of NFC’s sales on campus.
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As I see it, the school district definitely came ahead in this deal.
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Once the contract was signed and the deal was announced to the community, we
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started seeing reactions from the student body. For the most part, the deal was popular
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with the students, especially among student athletes and student council members.
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Unfortunately, however, there is a small minority of students who don’t like the deal and
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have taken every opportunity to criticize it. What the student critics do not recognize is
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that this is a $500,000 deal, and the school district has neither the funds nor a viable way
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to raise the funds. Furthermore, the students must not realize how bad the condition of the
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field is—not only is it an embarrassment for the district, but I have received complaints
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from my own coaching staff and staff from other schools about the poor playing
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condition of our field. Although there are also safety concerns about artificial turf fields,
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in my opinion the poor quality natural field we use now is a lawsuit waiting to happen
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unless we get much-needed facilities improvements.
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The school district administrators and I do not believe we made any unethical or
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unconscionable concessions in this deal. We negotiated rationally. As a matter of fact, it
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is a very good deal for the school district and of great benefit for the students. That is
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why the student criticism of the deal is so upsetting. Don’t the students know or
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understand that we have their best interest in mind? Why embark on this venture if it
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were not for the benefit of the school?
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I have heard the rumors about promises of a position at NFC for me when I retire.
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Unfortunately, these reports have been taken out of context to suggest that the offer of
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employment somehow influenced my decision to support the NFC deal. It is true I plan
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to retire and seek new employment—potentially with NFC— some time after the
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improved stadium is inaugurated, but that is only a function of prospective changes in the
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teachers’ retirement system. It has nothing to do with the NFC negotiations. Although I
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plan to take some time off after retirement and tour Central and South America with my
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family, I will start looking for employment as soon as we get back from vacation.
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Working for a multi-national company like NFC is not out of the question. I have had
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some conversations with friends at NFC about the type of positions for which I would be
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suited.
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Phillips offers over 40 student clubs, activities, and athletic programs to students.
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Our students are encouraged to participate in some of the groups as they contribute to a
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student’s overall education. Students learn to become engaged in their community,
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express their views, and cooperate with other participants as members of the various
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groups. All of these activities contribute to an individual’s growth, especially at this
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young age. However, caution should be used with regards to group activities. As such,
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regulations are clearly stated in the Phillips Student Handbook. All activity, including
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speech and distribution of literature, associated with the groups must be within the
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boundaries of socially appropriate behavior. No vulgar, obscene, disrespectful, or
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inappropriate speech, slogans or images will be tolerated. Group activities cannot incite
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other students to commit illegal activities or violate school rules. They cannot sanction
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activity or speech that makes false personal attacks. Group activity cannot cause a
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substantial disruption of the orderly operation of the school.
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Groups may distribute written materials, including newspapers and handouts,
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within the bounds of school rules. Written materials must not, however, be distributed in
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a way that would disrupt the normal functioning of the school. Materials can only be
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distributed before school or after school. It is prohibited to leave materials around to be
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picked up or placed on the windshields of cars. Literature must bear the name of the
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person who authored it and a copy must be provided to me a day before it is distributed
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on campus.
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Phillips does not discriminate against any group on the basis of the religious,
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political, or philosophical nature of its existence or activities. Phillips does not, however,
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permit any student groups that are not curriculum related to use school facilities for
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meetings or events. A curriculum related student group is allowed access to school
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facilities for meetings and other activities as long as the group obtains advance approval
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from my office.
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Several registered student groups as well as an unregistered Occupy student group
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have been protesting the NFC deal. As stated earlier, I encourage our students to become
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engaged, participate, and express their opinions through the various students groups, even
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if the views are misinformed. What I cannot tolerate, however, is disruptive activity and
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contempt for established rules and policies. School rules and policies serve an important
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function. They were carefully and deliberately adopted to further Phillips’ fundamental
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educational objective and protect everyone in the school community.
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The so-called Occupy group that has developed seems bound and determined to
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flout the rules and create chaos. Although Occupy is a non-curriculum related group, it
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has held numerous meetings on school grounds, including impromptu meetings in the
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cafeteria and hallways, which have disrupted educational activities and caused students to
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be tardy to class. It has also constructed a “tent city” next to the stadium, which has
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created all sorts of public relations and security problems and jeopardized the NFC deal.
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Occupy started out innocent enough, with a group of 20 or so students meeting in
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the cafeteria. From a staff meeting with teachers that occurred shortly thereafter, I came
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to understand that the students were complaining about the NFC deal. Much to my
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surprise, similar complaints were raised by a few of the teachers, Alex Chen chief among
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them. Alex is a committed and competent educator, but Alex is relatively inexperienced
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and sometimes struggles with maintaining a mentoring role with the students. Alex
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seems to like to be the students’ friend more than a role model and authority figure, and
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that can often lead to problems, as it has in this situation. I had to explain to Alex and the
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other teachers that the NFC deal is going to be a great thing for the school, and, in any
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event, it’s a done deal that can’t be altered or canceled. I expect teachers to support
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myself and the school in this endeavor.
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After the staff meeting, Alex convinced me to meet with representatives of the
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student body about the NFC deal. In hindsight, this was a bad idea. The students who
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came were largely Occupy members who wanted to prevent the deal from going through.
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I did my best to listen to their concerns before patiently explaining the deal’s benefits to
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Phillips. I also told them that the school board had already decided the issue, and the deal
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would be going forward as scheduled. Most of the students in attendance just got more
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upset after hearing what I had to say. One student, Jesse Springfield, was particularly
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vocal in his opposition to the deal.
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Subsequently I learned that Occupy had started a Facebook page and an online
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petition to oppose the NFC deal. I couldn’t believe it when I heard the petition had
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already gotten over a thousand signatures, and I quickly became concerned that this
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opposition might jeopardize the deal, especially after I shared the development with Lee
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Martin, who, to put it mildly, was not pleased.
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Phillips simply cannot afford to have this opportunity pass it by as the budget
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situation for Phillips is not good, and it’s only getting worse. Costs continue to rise,
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property tax revenues are steadily decreasing, and the community has voted down the
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past several attempts to pass a levy or bond initiative. If the opposition to the deal gets
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too robust, resulting in too much unfavorable publicity for NFC, NFC may back out and
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offer the lucrative deal to another area school district. Competition to be selected for the
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facilities improvement initiative is intense, and it was only through my relationship with
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Martin that Phillips was picked. There are plenty of other school districts where NFC
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could take its business if it doesn’t like the direction things are going here.
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Meanwhile, vigorous debates, including some shouting and near altercations,
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began breaking out in the halls between Occupy protestors and some students in favor of
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the deal. The Occupy students requested another meeting with me. I declined to meet
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with them because nothing had changed, and students need to learn to respect my
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authority and the authority of the school board.
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Undeterred, Occupy chose to raise its profile by distributing leaflets and posting
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signs on campus during school hours. Significantly, Occupy’s literature was not provided
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to me prior to distribution, and the authors were not identified on the handouts, in clear
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violation of the requirements of the student handbook. I was informed by the student
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newspaper’s teacher advisor that a pro-Occupy, anti-NFC article had been submitted for
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publication. Naturally, I prohibited it from being published in the newspaper. Occupy
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posted it online anyway.
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The next day I had a rather unpleasant conversation with Lee Martin, who was
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incensed about the community’s scrutiny of the deal. Lee insisted on meeting with
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Michaels and myself to discuss ways to counteract the negative publicity Occupy was
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generating for NFC. Lee’s a dear old friend that I respect and trust but Lee is used to
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having decisions implemented quickly and without interference and Lee didn’t take
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kindly to being told that the students’ have certain civil rights that Phillips shouldn’t
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violate. In the end, I promised to crack down on Occupy as much as I legitimately could.
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After the meeting, I decided that Occupy had gone too far with its unapproved
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literature, and that I had no choice but to strictly and immediately enforce the rules. I was
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afraid that both the school district and NFC would have serious doubts about my
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management abilities were I to lose the deal now. I instructed the custodian to remove
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Occupy’s signs and put up extra surveillance cameras in order to prevent, or at least
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monitor, any future misconduct by Occupy students. In this age of increased school
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violence, the school district has surveillance video cameras on campus and many school
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buses have surveillance video/audio cameras on board. These measures have been well-
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publicized and were taken with student, faculty, and staff safety in mind. The surveillance
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cameras are in operation inside and outside of the school facilities as well as on district
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school buses. However, I felt the tension created by the Occupy students warranted
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additional cameras in order to ensure safety.
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I also instructed an undercover police officer, who had been investigating illegal
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drug activity inside the school, to infiltrate Occupy and find out specifically which
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students were leading Occupy and what the group was planning to do next.
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After infiltrating Occupy, the police officer informed me that Occupy had
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developed a plan to set up a tent city near the stadium in order to protest the NFC deal.
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This officer also identified five students as the primary Occupy leaders. I knew all of
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these students from my recent monitoring of the surveillance cameras. They were the
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usual suspects. It was a good investment putting up those security cameras and allowing
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covert police drug operations in the school. At least the cops wouldn’t be upset with me.
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I also sent notices out to Jesse Springfield and four other students who had
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emerged as leaders of Occupy, and all their parents, stating that Occupy’s literature
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violated school policy, and that Occupy, as a non-curriculum related group, was
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prohibited from meeting or distributing literature on school property. The notices also
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warned that Phillips would not hesitate to enforce and punish infractions of school rules.
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Later, I saw flyers captioned “occupy the field” strewn about the school parking
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lot and hallways. The flyers contained outrageous caricatures of several school board
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members’ pockets overflowing with cash and encouraged students to take back their
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school and occupy the field. Lee told me that students were using Twitter to organize for
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the tent city protest. Lee told me that one post bragged about hacking into the school
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computer system and my e-mail account, claiming that some emails showed improper
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special influence and bribery between me and NFC execs. It’s hard to believe my own
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students could make up such hurtful lies.
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To prevent any potential trespassing on school property I had the fence
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surrounding the stadium locked. Access to the field was only by permission. As tempted
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as I was to go further by completely shutting down Occupy’s unauthorized use of school
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facilities before it began, I decided to let the tent city happen and instructed the
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undercover police officer to attend and try to catch Occupy students engaging in conduct
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that was either illegal or violated school rules.
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The night the tent city went up was very tense for me. It showed up on the local
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news, and I saw that a number of community members, including Alex Chen, had
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showed up in a show of support for the protest. Lee threatened to back out of the deal if I
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didn’t put a stop to Occupy. Lee further suggested that Phillips file a lawsuit to remove
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the tent city before the upcoming ground breaking ceremony. Later that night I met with
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the undercover police officer. Unfortunately, there hadn’t been any overt illegal acts or
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violations of school rules, but Mancuso did tell me that Jesse was overheard making
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numerous comments about hacking into the school computer system and my e-mail
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account. Apparently, Jesse had been bragging about being able to monitor what I was
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doing using nothing more than his smart phone. The informant also told me that Jesse and
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the other Occupy leaders were storing some of the unauthorized Occupy literature in their
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lockers.
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The next day, before the students arrived, I had Jacobs and Mancuso search
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Jesse’s locker, as well as the lockers of four other Occupy leaders. The police department
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had decided to terminate the unsuccessful covert drug buying project so I decided to have
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Mancuso help conduct the searches and hoped that the Occupy students might be
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appropriately scared into ceasing their protests once they knew the police were involved.
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Mancuso found the unauthorized Occupy literature, as well as some empty tent bags and
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all manner of sign-making materials. I called Jesse and the other students down to my
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office as soon as they arrived that day. I met with Jesse first, and had Mancuso attend the
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meeting. I confronted Jesse with the unauthorized Occupy literature we had discovered in
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Jesse’s locker. I instructed Mancuso to search Jesse’s backpack for any additional
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contraband. Jesse had more unauthorized Occupy literature in his backpack, as well as a
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smart phone. I confiscated those items as evidence of Jesse’s misconduct and asked that
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Jesse provide me with the password to the smart phone. Although I have my doubts about
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the propriety of actually searching Jesse’s smart phone, I cannot tolerate any student
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using their computer phones to hack into the school computer system and my e-mail
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account. Unsurprisingly, Jesse would not provide the password, not even when I warned
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him that continued insubordination could have dire consequences for his future and,
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specifically, the college admissions process. I had similar meetings with each of the other
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Occupy leaders. Afterwards, I had a conversation with Alex Chen and told Alex in no
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uncertain terms that continued involvement with Occupy could result in discipline and/or
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employment termination.
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While my actions might seem harsh, they were all taken to help Phillips preserve
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the NFC deal. Being a principal isn’t easy, and sometimes I have to make difficult
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choices to protect students from themselves. If I had allowed Occupy to continue with its
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anti-NFC campaign, NFC might have backed out of the deal, which would leave Phillips
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in a terrible position. Further, I was simply enforcing the school rules for the benefit of
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the vast majority of the students and Phillips as a whole.
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STATEMENT OF CASEY MANCUSO
255
Police Officer – Plaintiff
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My name is Casey Mancuso and I’m a rookie police officer employed by the
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Phillips Police Department. I was born and raised in Chicago, Illinois where I attended
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and graduated from high school. I’ve wanted to be a police officer since I was young--
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you see my aunt was an innocent bystander killed in a shootout between drug dealers in a
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wealthy suburb of Chicago, and it was the hard work of the homicide detectives that
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solved that case and brought relief to our family. Ever since I knew I wanted to be a
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crime scene investigator solving the difficult cases through hard work, good science and
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out thinking criminals. I can only hope that in my career I will be able to help other
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families the way mine was helped by the detectives who solved my aunts’ murder case.
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After graduating from high school I worked as a security guard in a local
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apartment complex while I applied to over 50 police departments in the Midwest. I was
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overjoyed when the City of Phillips offered me a slot in their 2012 Police Officer
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Training Academy, an offer I quickly accepted. I moved to Phillips, accepting
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opportunity to live with a local older couple who knew the Academy’s supervising
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commander and who had a spare bedroom for rent due to their son recently having
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moved out to California to work for the National Fructose Corporation as a social media
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consultant. The Academy was everything I had hoped for and more. I loved the training
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and camaraderie and was very proficient at investigative details and weaponry. I quickly
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incorporated the core values of the Academy into my thinking and practice: honesty,
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professionalism, and adaptability, attention to detail, self-discipline and hard work.
an
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It was shortly before graduation from the Academy that I was given a special
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assignment in the local high school to conduct undercover drug investigations. Every
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large metropolitan area has drug related problems in their high schools; however, the past
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few years had seen a rash of such incidents at Phillips High School. Our department’s
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previous efforts at intervention and using students as informants had underestimated the
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scope of the problem. As I looked very young and was new to the area the Commander
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believed I was the perfect candidate to infiltrate the local student culture and see if I
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could determine who was dealing drugs in the high school and who was supplying those
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student dealers. Before initiating my undercover assignment I met with Principal Gomez
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who outlined the drug problem in the school, provided me with a fake student ID, a class
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schedule, a locker assignment and a list of suspected student dealers to investigate. My
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cover story was that I was a transfer student new to the area and the school district. I was
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given nearly a thousand dollars in small denomination marked bills to use to purchase
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drugs. A whole new identity—I felt like 007, how cool is that!
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Given my appearance it was relatively easy to fit in at the school. I told other
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students that I had been sent to live with relatives in town until the end of the school year
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because I had been kicked out of my other school for behavioral problems--other than
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that cover story the hardest part was remembering to answer to and use my fake student
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name, Casey Sanderson. After a period spent befriending some potential suspects I
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started making inquiries about where I could get drugs. However, I had not made much
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progress in identifying any higher ups in the supply chain in those first couple of months.
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I did get a tip about a fire set in a school trash can but that was minor so I was concerned
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that the Department might terminate the project and reassign me, probably to traffic cop
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duty as that’s normally where the rookies start.
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It was about this time, just 5-6 weeks before the end of the school year, that my
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assignment in the school was modified to incorporate a new investigation, one that I
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found both intriguing and somewhat puzzling as it had nothing to do with drugs. My
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commanding officer brought me into the office where I met again with the Principal, but
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this time there was another person, someone from NFC, who told us that NFC had
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recently moved some of its equipment onto the high school grounds where it was
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vandalized with spray paint by a tagger using the initials NSA at the high school. The
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Principal said the school custodian had discovered the damage during a walkthrough of
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the high school stadium grounds removing Occupy signs. The signs and damage
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apparently had occurred the same day as an impromptu Occupy meeting in the school
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cafeteria. I was told to infiltrate the Occupy group and report on that matter directly to the
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Principal with a daily written report to the Commander. The Principal and the
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Commander both thought the spray paint was done by one of those students who think
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they’re smarter than the authorities by using a multiple play on words and a misleading
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moniker—in this case NSA probably not being a name tag but a reference to the
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clampdown at school using a common acronym that referred to a spy agency but also said
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to mean “no such agency.”
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I wondered if I would be drawn into the Occupy dispute as it was common for
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local police departments to infiltrate protest groups. Occupy was the talk of the school
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with the furor that had arisen over the NFC deal, which was an agreement for NFC to
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give the high school a new artificial turf field in exchange for stadium naming rights and
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a vending machine monopoly. That had already happened to my school in Chicago,
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although there it was an internationally known athletics shoe company who also provided
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new uniforms and new shoes for athletes. Although the Commander did not say so
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directly, this seemed to be a felony criminal investigation of vandalism which gave me
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more leeway in the methods and tactics I could use. Luckily for them I was already on
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site and could easily adapt to the new assignment.
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I started attending Occupy events where I learned that some of the Occupy
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students were intent on stopping NFC from renovating the field and were seriously
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considering several options to prevent the NFC and the school board from going forward
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with their plans. None of these students were targets in my drug investigation.
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At first there was no need for me to investigate these specific Occupy plans any
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further because the students were talking about legal activities, like online petitions,
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leafleting, visible protests with signs, you know, demonstrations like those we see every
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day in America. Since I had been trained in both 1st and 4th Amendment law I knew that
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these were not illegal acts although I could see where they might be disruptive to the
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school. But in line with my understanding of other protest infiltrations I recorded the
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meeting and later started a list of all students at the meeting so I could do online social
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media follow-up to help me identify leaders. It was this process that helped me identify
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the five individuals named in this lawsuit. Also there was some after-meeting chatter
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about vandalism and hacking the school’s computers although those kids stopped talking
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when I walked up to them. From my recent training I know that hacking a computer
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violates state law, and I would guess that it probably violates a school rule as well.
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At subsequent Occupy meetings I began to hear some students talking about
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disrupting normal school activities and using or “occupying” school property. Jesse
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Springfield was one of the students who moderated a discussion about doing something
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or planning some type of protest to physically prevent the NFC from going forward with
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its construction plans. To me it seemed clear that Jesse, without actually saying so, was
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encouraging students to engage in acts of what he called “civil disobedience” by
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trespassing on school property to set up a “tent city” that would block NFC’s ability to
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install the artificial turf.
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In connection with my role I was supposed to gain the trust of my student targets.
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To do this I helped prepare the Occupy handout that disclosed that NFC has made
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significant campaign contributions to a number of local politicians, including members of
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the school board. I had learned to do this type of corporate background check at the
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Academy in connection with training on public corruption cases. I also helped get the
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handout reproduced, which I did using school copying equipment afterhours. Many of the
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Occupy protests were organized using social media platforms, including cell phones,
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smart phones and laptops, with specific events posted on Facebook and urgent events
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announced on an anonymous Twitter account. Organizers would call students they
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believed to be sympathetic to their cause and talk to each one, sometimes endlessly,
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encouraging each to get involved and appear at the stadium gate. They were planning and
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talking about civil disobedience. I heard them say things like “We should do whatever it
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takes” and “sometimes you have to break the law to get noticed and get the man to
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understand.”
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I never really understood what the Occupy students were complaining about—
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lots of students supported NFC by buying and eating NFC snack products all the time, the
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new field could only benefit the school, and almost everything Phillips students used or
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wore was branded with some corporate name: from their smartphones to their clothes to
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their shoes to their eyeglasses to their book bags. They’re walking corporate
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commercials, so demonstrating about the corporatization of their school by NFC seemed
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hypocritical to me. That train has left the station.
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The NFC dispute took over the school. Everyone was talking about the deal and
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the protests and what was going to happen. Even I couldn’t escape the powerful
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sentiment behind the Occupy effort to have some influence over their school and its
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educational mission. But too much was made of it in my opinion especially in my U.S.
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History class where Alex Chen permitted way too much Occupy and civil disobedience
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class discussion unrelated to the topic of the day, which may have been the Vietnam war
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or the civil rights struggle of the 1960s and 70s, I don’t remember which as it didn’t
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matter how I did in the class. This Chen person struck me as playing both sides of the
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dispute. Chen seemed to be on the side of the students, signing their online petition,
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advising the Occupy students, and even staying all night at the “tent city.” At first I
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thought Chen might be working covertly for the Principal like me as Chen did not seem
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to get into any trouble, at least not that I knew about. I wonder if Chen was involved in
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the vandalism?
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Anyway, the five students that I concluded constituted the Occupy leadership in
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the high school were Jesse Springfield, Storm Jackson, Alex Leslie, Terry Silva and
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Trilby Van Acker. I had seen these students run Occupy meetings, pass out leaflets on
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school grounds, including in the cafeteria, and post leaflets on the hallway walls. The
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template of the leaflet I copied and handed out was given to me by Jesse who had
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downloaded it onto a thumb drive from a smartphone—I didn’t want to do this as these
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were not the kids I was originally assigned to investigate; but it was my job to follow
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orders, not question them, and I did need to be one of them to gain their trust. Plus I
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suppose it’s not as bad as buying or doing drugs in the school, which I also did as part of
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my undercover work. Sometimes police have to break the law in order to enforce the law.
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At the request of my Commander I informed the Principal of these five Occupy
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individuals and noted that in my opinion they were conspiring to engage in illegal
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activities. The Principal interrupted me before I could explain what additional evidence I
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might need to make a case to my Commander for charges or a warrant, although I told the
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Principal that each of these students had participated in Occupy meetings and advocated
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additional Occupy actions on school grounds. The Principal seemed delighted at my
401
report.
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The next day I learned that each of the “Occupy Five” had been served with a
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“warning letter” from the Principal ordering them to cease and desist from any Occupy
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related activities. A meeting was called for that evening at the stadium. I went. At the
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meeting these same five students and their sympathizers decided to “occupy” the green
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space right outside the stadium fence with protest posters affixed to both the tents and the
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fence itself. Consensus was reached and seemingly out of nowhere tents and supplies
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appeared. I bet you that teacher Chen knew about his beforehand. The initial tent city
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involved 37 students, including me. Later that evening some of the students began
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encouraging the others to block the gate with their tents to prevent the start of
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construction. Another plan was discussed that would have students hold a “sit in” at the
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gate the minute the crews arrived to start construction, with someone suggesting that
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students chain themselves to the gates to physically prevent the workers from entering the
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construction site. The talk at this meeting grew more and more militant and in my opinion
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some of the proposed acts went beyond civil disobedience to the point of encouraging
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violence, though I have to admit that at this Occupy meeting no consensus was reached
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on future tactics, only on what rules would apply to the “tent city” like no drugs, alcohol,
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weapons or violence.
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While I was there several of my fellow officers did a walkthrough taking
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photographs—what we called in the Academy an “intimidation stroll” just to let the
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students know that the police could come in at any time and conduct surveillance so the
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students better be careful. I noticed that Chen was hanging around as well and may have
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brought a tent. I’d hate to be in those shoes when contract renewal time comes around. I
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did not stay all night at the “tent city” as I was not authorized to do so by my
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Commander—plus when the Principal showed up just before I left he kept looking at me
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weirdly with a quirky smile that I found disconcerting—the Principal seemed much more
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interested in stopping these protests then in catching drug dealers.
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The next morning Principal Gomez asked me to assist the school custodian Pat
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Jacobs in searching the lockers of the five Occupy leaders I had identified. The Principal
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directed Jacobs to cut off the locks and directed me to search, inventory and seize all
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locker contents. The Principal seemed particularly interested in seizing smartphones and
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laptops in addition to Occupy related documents. We turned this material over to the
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Principal. Jacobs left a note on each locker. The Principal had me call my Commander
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who indicated that my covert operation was terminated immediately and that I was to
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assist the Principal in interviewing the identified students about the equipment vandalism.
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I told the Commander that I was sorry that I had not acquired enough evidence to obtain a
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search warrant for the student’s persons or phones but that I would gladly help the school
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interview the students and then complete my police report on both the drug project and
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on Occupy. The Commander said I should discard my notes on Occupy and not do an
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Occupy report, only a drug report. He then asked to speak with the Principal.
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When the Occupy Five arrived at the Principal’s office they were each informed
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that their backpacks would be searched, which the Principal did with the assistance of
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another school administrator. I only observed. The custodian had left. The Principal
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confiscated several smartphones, under what authority I didn’t know—perhaps the school
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rules permitted that although I wasn’t sure as I have never seen a copy of the student
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conduct code or anything like it. However, given that the vandalism case was unsolved,
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and the fact that I knew that potential criminal acts had been discussed at the “tent city” I
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asked the students for permission to “search” their smartphones—none of them
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consented. I hope we discover enough new evidence to search the smartphones as I think
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there will be information there that can help us make an arrest on the vandalism incident
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and perhaps uncover other illegal acts.
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I currently work as an accident investigator for the Police Department and am
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taking some law enforcement classes at the local community college to advance my goal
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of becoming a homicide detective.
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457
STATEMENT OF LEE MARTIN
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National Fructose Corporation Vice President - Plaintiff
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My name is Lee Martin. I’m Vice President of Community Relations for the
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National Fructose Corporation or NFC, the largest soft drink and snack company in the
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Americas and Western Europe. I’ve been with NFC for 16 years. I earned my
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undergraduate economics degree from Harvard and after graduating from business
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school, I went to Yale, I was hired by NFC as a market analyst. Not to toot my own horn,
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but my rise at NFC has been meteoric. My success in recent years has derived chiefly
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from my facilities branding initiative, which is my visionary plan to obtain naming rights
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to, and exclusive vending rights at, college stadiums. It’s an ingenious win-win for NFC
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and the schools. NFC gets naming rights to the stadium, including the right to post a big
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NFC sign, and the exclusive right to sell soft drinks at all school sporting events for a
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fifteen year period. Sometimes NFC even gets the exclusive rights to sell anywhere on
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campus! In exchange, NFC provides the school with a new, state-of-the-art artificial turf
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field and other facilities improvements.
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Since starting the facilities branding initiative, NFC has seen a significant increase
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in sales in the 19 to 22 year-old segment, one of our key target demographics. A few
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years ago, when I pitched the idea of expanding the facilities branding initiative to high
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schools, thereby increasing our already robust sales to another key demographic—the 15
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to 18 year-old segment—the CEO took notice, pressured my boss to resign, and installed
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me in his place.
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NFC’s most recent facilities branding initiative deal is with Phillips High School.
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Since the facilities branding initiative is the cornerstone upon which my success at NFC
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is based, I have personally overseen all aspects of the Phillips deal.
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I identified Phillips as a good fit for the high school facilities branding initiative
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because I’ve been friends with Jaime Gomez for over forty years. We met when we were
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both in college at Harvard and hit it off right away. Our family backgrounds are similar,
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and, initially our political beliefs matched up on practically every issue worth arguing
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about. However, the Vietnam War and counterculture movement changed Jaime. I
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couldn’t believe it when Jaime went all hippie on me, participating in sit-ins and non-
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violent civil disobedience. Jaime even rejected a lucrative career on Wall Street, instead
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choosing to pursue a job in public education, of all things! I tried like crazy to talk Jaime
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out of it. When Jaime pushed ahead anyway, I sort of wrote Jaime off in my mind as a
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valuable contact to maintain, but I stayed in touch anyway and even fed Jaime some
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favorable tips about the wisdom of investing some 401K retirement fund in NFC stock.
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Jaime’s always been appreciative and jokes that NFC will be paying for both our
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retirements one day! I really never dreamed that Jaime’s ill-conceived career decision
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could help me to achieve success in my own career, but, hey, stranger things have
495
happened!
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Jaime and I first met to discuss getting School District on board for NFC’s
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facilities branding initiative a couple years ago. At first, Jaime was skeptical that we
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could get community support for the introduction of such a corporate presence at the high
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school, especially one that markets products containing fructose, which a couple of
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disputed scientific studies has connected to obesity and diabetes. I had concerns as well,
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given that the school district is in a city suffering economic decline and a loss of middle
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class jobs to overseas companies, and thus has a predisposition to blame corporations for
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all the problems with their country, their neighborhoods, their kids…you name it.
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Whatever happened to personal responsibility? Anyway, we brainstormed about the
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challenges we were facing and finally settled on a course of action that should make the
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project a success. I think I really sealed the deal with getting Jaime on board by
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promising I’d arrange for him to have a nice cushy corporate job at NFC if he ever
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decided to get out of education.
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Once Jaime was ready to play ball, I was introduced to Jaime’s neighbor, Stanley
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Michaels, who is a member of the Phillips School Board. After meeting with Michaels,
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who was facing stiff opposition in the upcoming election, I quietly arranged for NFC’s
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political action committee to make a sizable campaign contribution to Michaels’s
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beleaguered campaign. I also arranged for contributions to other school board candidates.
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A very appreciative Michaels managed to win the election. Shortly thereafter, Michaels
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was chosen by his peers to lead the school board. And soon after that, a well-placed
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phone call got me a meeting with the school board members. I didn’t want a lot of prying
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eyes looking too closely at NFC’s overtures until I was able to gauge how receptive the
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school board members might be to the facilities branding initiative, so I insisted on
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holding the meeting off school grounds. I decided to hold the meeting in a conference
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room at an exclusive country club just outside town.
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At this closed door meeting I sang the praises of NFC’s facilities branding
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initiative—which I called the facilities “improvement” initiative throughout the
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meeting—to the school board members. I went on and on about the positive feedback we
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got from the schools that had signed on. “Our athletics program has become the focal
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point of our institution’s suddenly energized social life. Thanks NFC!” “We were on the
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point of having to terminate our football program until NFC’s generous assistance
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brought it back to life.
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conference championship!” You know, really working the locals over with testimonials
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about the positive impact NFC has on the schools it “partners with.”
Now we’re selling out every game and competing for a
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They ate it up, especially the ones I helped get elected. Of course, in truth, the
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schools do get a lot out of signing on for the facilities branding initiative. Lots of the
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schools are facing declining revenue and rising costs. For the most part, their sports
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programs are albatrosses around their necks, hindering more than helping the schools’
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bottom lines. NFC provides much-needed facilities improvements for a price that doesn’t
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show up on the balance sheet, so they don’t have to answer any tough questions from
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important donors or regulators. Without NFC’s help, the schools could never accomplish
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the improvements they so desperately need. The results truly are amazing. I’ve visited
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many of the campuses to see them first hand. Students and faculty really rally around
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their revitalized sports programs. It breathes a new sense of vitality into the schools that
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can’t be denied. In fact, my nephew attends one of the NFC partner universities, and he
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tells me how much better student morale is since the deal went through. But enough
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about all that. The facilities branding initiative is breathing a new sense of vitality into
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my career, and that’s what really matters.
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The school board members unanimously approved the facilities “improvement”
545
initiative, and signed NFC’s standard contract, the good one that gives us stadium naming
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rights, advertising control at the stadium, and exclusive soft drink vending rights on
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campus, all for a period of fifteen years. Plans were made for the construction of the new
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improvements—including the giant “Fructose Field” sign—to begin at the conclusion of
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this academic year. Formal approval of the deal still had to occur at the upcoming
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regular, public school board meeting on campus, but that was quickly and quietly
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accomplished. Everything was going exactly according to my plan…until the deal was
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announced to the students.
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The trouble started out as minor at first. Jaime called me to say that some of the
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students had started to meet and complain about the deal. Jaime said the students didn’t
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want a “corporate takeover” of the school. I told the Jaime to nip this in the bud by
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cracking down on the naysayers and notifying their parents of their disruptive behavior.
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Jaime indicated an intent to consider my plan, and that was the last I heard about it for a
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while.
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A couple of days later I got another call from Jaime, this time to tell me that some
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existing healthy lifestyles and democracy student groups were complaining about the
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NFC project, and that some students were “organizing” into a new group and distributing
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anti-NFC propaganda all over campus. The students had also started a social media
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campaign and an online petition to encourage others to oppose the deal. They had gotten
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over a thousand signatures! I hit the ceiling. Jaime was supposed to take care of this.
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Instead, we had a revolt on our hands, and the students’ anti-business and anti-athletics
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message was starting to gain traction in the community, not a good sign for either myself
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or NFC, especially once I received information from our media department that our
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websites and customer email accounts had seen an uptick in unfavorable messages
569
concerning our attempts to rescale our initiative to the high school market.
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I actually got a phone call from some backwater news reporter. You know, one of
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those “on your side” guys, who wanted to confront me about “back-room deals” and
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shoving unhealthy products down the throats of Phillips’ “impressionable youth.” I
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launched into my pep talk about the benefits to the school, and the fact that scientific
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studies that have examined the health effects of NFC’s products have concluded that they
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are no more harmful than coffee, and no more likely to cause diabetes than lemonade.
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The reporter didn’t ask, and I didn’t admit, that the studies cited were commissioned by
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NFC and conducted by scientists who receive research grants for other projects from
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NFC. The reporter didn’t seem impressed by the research I had cited or appreciative on
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my vagueness on my relationship with Jaime or my flat out denial that NFC had tried to
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influence the deal by making political contributions to school board members. In fact the
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reporter didn’t really want to hear it and said he wanted to do an on-camera interview. I
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declined although the day after the call, this Anderson Cooper wannabe tried to get to my
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house with a camera crew! All I can say is thank goodness I live in a gated community.
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I told Jaime that this had to stop and told him to quietly set up another meeting
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with Michaels immediately. I had to crush this rebellion. Too much was riding on the
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success of this project. If it fell through, NFC would be vilified, and a potentially
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lucrative marketing opportunity would be lost forever. More importantly, I’d be a
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laughing stock at work and my opportunity for further advancement would be history.
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The meeting with Michaels took place several days later. I told Jaime and
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Michaels that the situation was absolutely unacceptable, that NFC had gone too far down
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this road to have the project threatened by a bunch of angst-ridden teenagers. I also told
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them—in no uncertain terms—that their own butts were on the line on this too. I
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reminded Michaels whom he had to thank for his re-election and promised dire political
594
consequences if he didn’t do whatever it took to squelch the protests. Michaels just
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looked at me with this stupid expression and told me he didn’t know how he could do
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that, because the protesters had “a right” to express their opposition to the project. I was
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livid! I told them exactly what I wanted done.
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NFC had dealt with opposition to its corporate practices in a number of areas in
599
which aggressive NFC pushback, indirectly and anonymously applied, had proven to be
600
of some benefit in reducing barriers to implementing corporate policy in resistant
601
communities. I suggested, strongly I suppose, that we should plant someone in the
602
opposition who could tell us what they were doing and to sew dissention among the
603
ranks; that we need to identify, isolate and punish leaders if possible; and, that we needed
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to closely monitor their social media accounts and planned actions to collect evidence to
605
use in a legal action if that proved necessary.
606
By the time the meeting ended, I had brow-beaten them into agreement. I got
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frequent status reports from Jaime and Michaels over the next couple weeks. The end of
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the school year was approaching fast, and I needed to make sure that nothing happened to
609
derail the project. They reported that they had identified five students who were sort of
610
the de facto leaders of the organization, which unsurprisingly didn’t have much of a
611
structure to it. Jaime sent a notice to each of the students’ parents to outlaw the
612
organization and tell them about their kids’ disruptive and anti-authoritarian conduct, and
613
the dire consequences such conduct could have for the kids’ futures. Jaime even hinted
614
that the students’ conduct might have adverse effects on their plans for college.
615
Unbelievably, some of the parents took the kids’ sides! They claimed their kids had the
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right to speak out against the “evil empire” of NFC, and that they planned to add their
617
own voices to their kids.
618
The situation then went from bad to worse. Instead of losing momentum, the
619
organization was recruiting supporters and stepping up its profile. It took to calling itself
620
“Occupy” and announced plans to set up a tent city next to the athletic field to protest the
621
project. They distributed leaflets on and off campus, posted signs on bulletin boards and
622
the fencing around the stadium, and intensified their social media campaign to recruit
623
new members to join in the tent city protest. I assigned one of NFC’s social media
624
consultants to start monitoring Occupy’s Twitter activity and learned that it coordinated
625
its communications by using the hashtag #occupythefield. Lots of users were posting
626
tweets using that hashtag. Most of the tweets either announced plans for the tent city or
627
encouraged others to join in. Some of the tweets, though, were more sinister.
628
One user, who went by the handle “Brainiac,” tweeted all sorts of horrible
629
messages about the health effects of NFC products, claiming that they led to childhood
630
obesity and Type 1 Diabetes, among other things. Another user, “Firestarter,” encouraged
631
Occupy members to move beyond non-violent civil disobedience. And there was one
632
poster, “J.S. Demos-Kratia,” whose tweets consisted largely of 140-character diatribes
633
about Jaime and the injustice of School District’s policy on student clubs. J.S. Demos-
634
Kratia also boasted about hacking into the high school’s computer system to find internal
635
memoranda to teachers and staff about cracking down on Occupy, and—even worse—
636
about “secret” and “illegal” communications between Jaime and NFC “fat cats.” In one
637
tweet, J.S. Demos-Kratia indicated an intent to “fight the man” by using a smart phone to
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638
monitor Jaime from inside tent city. I showed the tweets to Jaime, who promised to crack
639
down on Occupy.
640
Apparently after Jaime started the crackdown, a group of about 30 students set up
641
their tent city in the area between the main thoroughfare in front of the school and the
642
stadium. Somehow Occupy found out about the campaign contributions to Michaels and
643
the other school board members, and started including that information in its propaganda.
644
The leaflets and signs also started making the familiar accusations that NFC’s products
645
are unhealthy and can cause diabetes. I get so tired of having to deal with that.
646
Jaime hauled the leaders into Jaime’s main office and finally confiscated their cell
647
phones like I said, but for some reason Jaime is squeamish about opening them up to read
648
the kids’ texts and social media posts. I don’t get it.
649
In order to communicate to the community that the project is going to happen and
650
that everyone should just accept it, I had the construction equipment moved to the school
651
grounds early. In a couple days, we’re scheduled to have a press conference, with a
652
ceremonial “first shovel” photo op at the site. Since I can’t risk an ugly scene during the
653
press conference, I had Michaels get the school board lawyers to file a lawsuit against
654
Occupy and its leaders in order to get a court order to remove them from the area and
655
allow the project to go forward unmolested.
656
If the lawsuit doesn’t work, I don’t know what I’m going to do. The CEO has
657
gotten increasingly concerned about the progress of the project lately. The tent city is
658
close enough to the site that our insurance carrier may require some additional
659
exemptions for liability purposes, which will cost us money and delay. Additionally our
660
crews will have to modify their schedule and access to the site to avoid the protestors
120
661
which will also cause delay and increased costs. The tents appear to be far enough away
662
from the site that they won’t prevent construction, but I’m also sure it will make the
663
project more costly by requiring additional security, especially if more students and tents
664
appear on the site. Plus if the students get any bolder and chain themselves to the fence
665
or lay down in front of equipment it will delay construction, potentially even beyond the
666
built-in flexibility in the schedule for weather and material delivery delays. At this point,
667
the project is on the razor’s edge. If it goes well, NFC will reap huge benefits and will be
668
able to continue its expansion of the facilities branding initiative to other high schools. If
669
that happens, my star will continue to rise, and I could possibly be named as CEO
670
someday. If the project falls through, though, this will be a public relations nightmare for
671
NFC and I could lose everything.
672
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684
STATEMENT OF JESSE SPRINGFIELD
685
Student - Defense
686
My name is Jesse Springfield. I’m a 17 year old junior at Phillips High School
687
and one of the so-called Occupy Five, the five students named as Defendants in the
688
lawsuit filed by the Phillips School District. The school wants to kick us Occupy students
689
off our high school property and to deny us our constitutional rights to protest. By
690
consensus reached at our “tent city” Occupy has authorized me to testify in this lawsuit as
691
both its representative and as the representative of the other named students.
692
This all started when the school district announced several weeks ago that
693
National Fructose Corporation had inked a deal with the school to replace our stadium’s
694
perfectly good natural grass field with a plasticized artificial turf field like college and
695
pro teams have. With the fake turf bribe NFC gets to replace the current stadium name,
696
Freedom Field, with its own name, Fructose Field. It also gets to advertise and sell its
697
products during stadium events and gets exclusive vending machine rights in the school
698
to sell its overpriced sugar laden junk food. We have an elected student council member
699
with school board meeting observer status but the NFC deal was apparently negotiated
700
behind closed doors as students were never consulted about the deal. This doesn’t seem
701
very democratic to me.
702
When I first heard of this deal it made me sick—corporations are taking over our
703
country and it didn’t seem right that NFC should be able to brand our high school like a
704
NASCAR race. A heated discussion over lunch that day turned into a meeting of about 20
705
of us in the cafeteria to discuss ways to try to stop the NFC deal. Some students from the
706
Health & Nutrition Club said they would collect some research on NFC food products
122
707
while a couple in the Political Science Club agreed to contact the ACLU about student
708
protest rights. We decided to meet every day in the school cafeteria during lunch period.
709
We had seen the news about Occupy Wall Street a couple of years ago so we decided to
710
call ourselves Occupy the Field to represent our demand for student input and control
711
over our school food choices, our stadium name and our school.
712
Reading the research provided by the Health and Nutrition Club via links to
713
health websites we learned that there is a clear causal link between regular consumption
714
of fructose laden snack foods and drinks and childhood obesity, which then leads to a
715
significantly increased risk of getting juvenile-onset diabetes, also known as Type I
716
diabetes. Diabetes is one of the most common chronic diseases in children and
717
adolescents with over 13,000 new cases diagnosed each year. Many of us have seen the
718
NFC television and print ads that often used cartoon characters and toy giveaways to
719
entice young children to want NFC junk food. What kind of a sane society allows a
720
company to market a clearly unhealthy product to its children knowing that eating the
721
product can lead to such dire consequences? We shouldn’t let that happen. We also found
722
out from the NFC website and SEC reports that NFC has a Vice President whose only job
723
is to get good publicity for NFC by bribing poor school districts with grants and gifts, just
724
like they are doing here at Phillips High School.
725
With the help of Alex Chen some of us met with the school administration along
726
with Principal Gomez. They listened but it wasn’t really a discussion--more like a parent
727
telling a wayward child “because I said so” and insisting that we accept that as a reason.
728
In other words they blew us off like they always do by insisting that the agreement with
729
NFC was a done deal, that corporations have rights like people and that we shouldn’t
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violate NFC’s right to do business or the school’s right to upgrade school facilities. The
731
Principal just kept saying that we didn’t understand “how the real world worked.” I could
732
say the same about the Principal. It made me very angry to be treated like that. It was
733
clear that the school had no intent to discuss or negotiate anything with students.
734
At Occupy’s next meeting we talked tactics. We knew from our Social Studies
735
and Government classes that the only effective way to try to block this corporate takeover
736
of our school was by building a large vocal non-violent protest group. Like Martin Luther
737
King Jr. did in his time for civil rights, or the citizens who protested and stopped the
738
Vietnam War or the fight for women’s rights. One of the first things we did was start an
739
online petition for people to sign to oppose the NFC deal—it got over 1500 signatures in
740
just a week. We also created a Facebook page and a Twitter account so we could
741
communicate more quickly with each other about Occupy activities—it had about 300
742
followers. Several of us created leaflets on our laptops, downloaded them to our
743
smartphones, and then printed them at the local print shop. One had facts about NFC and
744
its products and the known health risks; the other was a general protest flyer. Students
745
were also encouraged to independently communicate their disagreement with the NFC.
746
We distributed the two handouts just outside the school entrances before and after school.
747
I also posted some in areas where other flyers commonly appeared--restroom stalls, on
748
bulletin boards, and I left some on cafeteria tables. I’ve seen other flyers and stickers
749
posted in school protesting the NFC deal, including a cookie size “NFC” sticker placed
750
over the coin slots of the company’s vending machines. The sticker was a great idea
751
although I don’t know who created it or even if they are part of Occupy.
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You see Occupy consists of those students who show up at our meetings and
753
agree to abide by our consensus decision-making process and our commitment to non-
754
violence. No one can officially speak for Occupy unless there is consensus at a meeting
755
delegating that authority to that person—true democracy in action—no leaders as we all
756
lead collectively. That’s why it was so strange to see five of us identified as Occupy
757
leaders. That doesn’t mean students in Occupy are not accountable. If you say you will
758
do something like make leaflets, facilitate a meeting or do research, you do it as a part of
759
your commitment to everyone in Occupy. I am more active than most but that doesn’t
760
make me a leader other than by example. Maybe the school is trying to make an example
761
out of me as in my opinion this lawsuit is designed to frighten us into being quiet docile
762
products of a profit based educational system that doesn’t want students to actually
763
practice what the school teaches about freedom and democracy. We need more student
764
activism not less.
765
More and more students, and their parents, started questioning the NFC deal and
766
there seemed to be some momentum building for holding public hearings about the
767
matter, which would delay the onset of construction. However, inside the school as
768
Occupy ramped up the school cracked down. They refused to meet with us a second time.
769
I was not surprised by this as the Principal probably wanted to toe the line on the position
770
that it was not within the province of students to decide issues related to capital
771
improvements, although I don’t see why we shouldn’t be involved—it is our education
772
and our school and our future so we should have some say. I mean that’s the point of
773
Occupy—push for a say, even if the push happens to violate some outdated and likely
774
unconstitutional school rules, also created without student input I bet.
125
775
The school sponsored student newspaper tried to run a pro-Occupy expose on
776
NFC and the deal but it was censored by the administration. The rag is really just a school
777
administration publication that allows a select few favored students to write for it as long
778
as the articles are not about anything important to the rest of us. However, for a moment
779
we had an inside track, a crack in the wall if you will, as one of the Health and Nutrition
780
Club students who joined Occupy also writes a weekly “healthy diet” column for the
781
paper. That person agreed to submit an article I had co-authored with her about Occupy.
782
Other Occupiers referred to it as a manifesto –not a name I would have chosen although it
783
was a call for action connecting health issues with political influence and democracy. But
784
the heavy hand of the overlord Principal said no to that article—school dances and sports,
785
yes—protests and student rights, no. We posted the original article online. It also ended
786
up on the school website though I’m not sure how.
787
Our leaflets were taken off bulletin boards, surveillance cameras were installed in
788
the cafeteria and school security stepped up harassment of students handing out leaflets
789
on school property. Chen showed me the rules on putting an author’s name of posted
790
materials but lots of students helped create our leaflets—that’s the beauty collective
791
action by consensus. We decide these things together so really the name Occupy on the
792
leaflet is an identification of the writer: all of us. Putting specific name on the handout
793
would have been inaccurate and contrary to how it was actually created. Plus, the name
794
requirement is simply a way to cast blame and impose discipline for content the Principal
795
finds politically inconvenient or offensive. I know this as the school permits all kinds of
796
useless leaflets to be posted in the school without author names on them.
126
797
George Orwell rules when it comes to describing power relationships. I think the
798
phrase he used was “some pigs are more equal than others” when talking about how rules
799
are interpreted and enforced—or not enforced by the people in charge. In this case we
800
knew it was NFC and the Principal enforcing the rules so it was not a shock last week
801
when the school gave a written notice to the Occupy Five: myself, Storm Jackson, Alex
802
Leslie, Terry Silva and Trilby Van Acker and our parents, stating that Occupy was not a
803
registered curriculum based student group and that Occupy handouts violated school
804
policy. The notice further stated Occupy was prohibited from meeting or distributing
805
literature on high school property. The notice included a warning, in bold capital letters,
806
that the school would take strong action against any student engaged in those activities or
807
otherwise interfering with implementation of the Fructose agreement, including any
808
interference with the installation of the artificial turf in the stadium. A similar notice and
809
warning about Occupy was posted on a bunch of school bulletin boards and on all of the
810
school entrance doors that same day.
811
At an emergency Occupy meeting that night, held just outside the fence that
812
surrounds the stadium, it was decided by consensus to erect a “tent city” as a symbolic
813
occupation of the field and as a public protest over the NFC deal. It was exciting. About
814
40 students set up about 10 tents. We also placed Occupy signs on the barrier fence,
815
alongside the other signs already there, mostly student event notices, cup messages
816
(disposable drink cups that spell out words), and NFC signs, the latter being covered up
817
with our signs. We wanted to make Freedom Field ours again although we were not on
818
the actual stadium property as the gates were locked with padlocks. The “tent city” is
819
close to the main road in town so everyone could see us. Reporters and supporters came
127
820
to the site as well as some parents. One teacher, Alex Chen, stayed all night talking with
821
us and sharing stories about the military and the Iraq War. A few cops walked through
822
taking pictures but they didn’t talk to us. Most students went home just before midnight
823
with some seniors who were already 18 years staying all night making signs and doing
824
homework and texting our friends. It was the best exhaustion I ever felt. We made each
825
tent into its own protest sign with slogans like: “NFC Diabetes Clinic”; “Obesity is
826
Cool—NFC”; “Fat Students—Fat Profits”; “Stadium for Sale to Highest Bidder”;
827
“Occupy Freedom Field”; “Money is Not Speech”; “Support NFC Workers,” and “NFC
828
Diabetes Delivery System.” Some of the signs posted on the fence had curse words in
829
them but they weren’t our signs and we didn’t feel right taking them down as that would
830
be denying other people their free speech rights.
831
The next morning when I went to my locker I discovered that it had been broken
832
into by the school. They left a notice stating that they had cut off the lock, confiscated my
833
locker contents, and that I needed to immediately go to the Principal’s office. Once there
834
they returned my books and some personal belongings saying they didn’t want to leave
835
them in the locker with no lock. However, they kept some Occupy handouts I had stored
836
there. Casey “Sanderson” was there and I thought the same thing had happened to Casey,
837
until I saw the police officer badge pinned on the snitch’s jacket that said “Mancuso”,
838
after which Mancuso, at the Principal’s instruction, and without my consent, searched my
839
backpack and seized additional leaflets as well as my smartphone. My smartphone
840
contains my day planner/calendar on it as well as documents related to Occupy, some
841
other school projects and a bunch of personal documents and messages.
128
842
I was stunned that Mancuso was actually a cop and had been spying on us.
843
George Orwell’s 1984 flashed into my head—sophomore lit comes to life. Mancuso had
844
been to most of the Occupy meetings, including the one last night, had helped us put up
845
tents, and had suggested some of the protest sign slogans. In fact at one meeting Mancuso
846
had suggested we put sugar in the construction equipment gas tanks and that we put our
847
own locks on the gates to keep NFC off the stadium field. I thought Mancuso was one of
848
us. The Principal said that the leaflets and smartphone were seized as evidence that I had
849
violated school rules and may be engaged in or planning or inciting criminal acts. The
850
Principal wanted my passcode and consent so they could “search” my smartphone. I
851
refused—no one should have the right to invade my privacy like that—I didn’t do
852
anything wrong. When I left the office I saw the other Occupy Five awaiting their
853
interrogation. I was told to go home for the remainder of the day but instead I went back
854
to our tent city.
855
The next morning I got served with this lawsuit. My parents and the other Occupy
856
Five parents hired a civil rights attorney and we filed our counterclaim against the school
857
claiming a violation of our 1st and 4th Amendment rights and demanding they return our
858
smartphones and handouts. I have read the school lawsuit claims and deny that I or the
859
other named individuals used school equipment to design or print Occupy handouts,
860
although I did download the template onto my smartphone to share and show to other
861
students, and I kept extra copies of the handouts in my locker. We also did not give our
862
leaflets to the Principal in advance of posting them, and the leaflets just had the name
863
Occupy on them not individual student names—this was done to avoid censorship and
864
harassment by the school. Occupy has not attempted to register as a student group as the
129
865
school requires groups to identify “leaders” and comply with illegal restrictions on
866
speech and assembly—it’s just another way to control students. And what the school calls
867
disruptive and offensive handouts I call democracy in action—I’ve never seen so much
868
debate or discussion about a school controversy—everyone’s involved—that’s not
869
disruptive, that’s real education and learning, it’s empowering—perhaps that’s why some
870
felt it needed to be crushed.
871
872
873
874
875
876
877
878
879
880
881
882
883
884
885
886
887
130
888
STATEMENT OF ALEX CHEN
889
Teacher - Defense
890
My name is Alex Chen and I’m a government teacher at Phillips High School. I
891
graduated from Phillips High School in 2002, and then served in the Army, including two
892
tours of duty in Iraq at a forward operating base where I was part of an experimental
893
drone surveillance program. I had achieved the rank of Specialist before requesting a
894
reassignment when I began to disagree with some of the strategies being used. My
895
request was denied and I took the first opportunity for an honorable discharge. Upon my
896
return to the United States, I attended the Ohio State University where I majored in
897
Education and then earned my Master’s of Education degree at the University of
898
Cincinnati. I returned to Phillips as a teacher in 2010. I work in the Social Studies
899
Department teaching government, history and political science courses. I think it’s very
900
important for students to be active in their school and community. As such, I serve as an
901
advisor to several student groups including Mock Trial and, more informally, Occupy. I
902
also sit on the school committee that oversees Phillips’ student groups.
903
Jesse Springfield is enrolled in my US History class and is one of my best
904
students, always engaged and very animated in class discussions. I often have to ask Jesse
905
to lower the rhetoric level as Jesse often becomes very animated when given the
906
opportunity to express opinions on the controversial social and political issues we discuss
907
in class, especially when talking about the rise of corporate power in politics and
908
influence of big money on what is considered private and what isn’t. Jesse also often
909
attended the periodic “current issues” discussion group I held during lunch breaks where
910
students could come eat and discuss the news of the day. I know that Jesse often wants to
131
911
talk about how the government and big business are conspiring to deprive citizens of their
912
right to protest, especially to protest about what Jesse describes as the undue influence
913
corporations have over elections after the Citizen’s United Supreme Court decision. It
914
was during some of these meetings that I suppose you could say I became an informal
915
advisor to Occupy as we started having lots of discussions in the “current issues” group
916
about the Arab Spring and civil disobedience and these interesting speculative
917
discussions I called “What would MLK do?” Most of the time, these discussions arose
918
from something we had discussed in class or related in some way to them. Jesse’s
919
enthusiasm for all things political does not mean Jesse’s been a problem student, to the
920
contrary I’ve never seen Jesse experience any behavioral issues in my class and Jesse
921
routinely receives high grades in class participation, tests and papers.
922
I got to know Jesse better when we both became involved with Occupy here at
923
Phillips. As a bit of background, many students began to express an interest in Occupy
924
after the National Fructose Corporation signed a deal for naming rights to the Phillips
925
High School football field, the field is formally referred to as Freedom Field in honor of
926
the men and women who have served in our armed forces.
927
During a staff meeting shortly after the public announcement of the NFC deal, I
928
asked the principal to see a copy of the contract between the school and NFC and
929
reviewed it carefully. It was signed by the President of the School Board, our Principal on
930
behalf of the school and NFC’s Community Relations VP. The main benefit to the school
931
was that NFC would replace the field’s natural grass with modern artificial turf similar to
932
that used in college or professional stadiums. We’d discussed upgrading the field at
933
previous staff meetings. The principal and coaches argued that the artificial turf would be
132
934
safer for athletes, reduce maintenance costs and allow more events to be held on the field.
935
However as Phillips had no way to pay for it given our current budget the school district
936
approved the Principal’s suggested deal with NFC, which had been sent to, and
937
apparently negotiated in advance, by the Principal. The NFC deal allowed us to upgrade
938
the field without taking money from any other programs or activities. I have a disdain for
939
NFC products due to my health, diet and exercise regimen which started when I was a
940
high school wrestler, continued in the military and I follow to this day. Having said that, I
941
am in favor of an artificial turf field as I think a more uniform and durable field would
942
prove to be a benefit to both our athletic teams and our community, which often uses the
943
stadium, football field and surrounding property for various civic and political events.
944
Although I honestly believe a new artificial turf field would be a benefit to the school, I
945
feel we gave up too much in return. First, the stadium would be renamed Fructose Field.
946
The previous name, Freedom Field, had been in use since the 1940s and the name was
947
originally chosen to honor returning World War II veterans. In fact, the stadium includes
948
a display listing all Phillips High veterans, including myself, that will have to be moved
949
as part of the renovations. I am offended that the Principal and the SD would even
950
consider such a slight to our veterans. It strikes me that perhaps it was this potential
951
controversy that resulted in the NFC agreement discussions occurring behind closed
952
doors.
953
In addition, NFC will be allowed to advertise and sell its products during all
954
stadium events. No products that compete with an NFC branded item may be sold. NFC
955
will also get exclusive vending machine rights to the stadium and the school with new
956
machines being installed in the cafeteria and in study nooks at several locations on every
133
957
floor. I understand they even intend on installing vending machines on the school’s other
958
playing fields, like the softball field.
959
After reviewing the contract, hearing from all the students opposed to the NFC
960
deal, and hoping to mediate the brewing controversy I arranged a meeting between some
961
students and the principal. Unfortunately the meeting went the same way as the school
962
staff meeting where I had expressed my opposition to the contract. During that earlier
963
meeting I stated that I didn’t want to lose the tradition and sense of community pride that
964
Freedom Field has inspired for generations. I also felt the increased vending machines
965
would encourage unhealthy habits in students. Most importantly, I felt the deal should
966
have been discussed with the faculty, students and community before it was agreed to. In
967
response, the Principal said my concerns were understandable but shared by a distinct
968
minority of others; that the NFC agreement was a done deal and that pursuant to state
969
law, custom and the teacher’s union contract with the school that the Principal was not
970
required to seek either input or approval from the teachers or students in advance.
971
Principal Gomez said the same thing in response to the students’ concerns, adding that
972
the new field would be great for the school and athletic program and that increased
973
revenue from more events at the stadium, as well as a percentage of the vending machine
974
revenues, would also serve to enhance educational opportunities at Phillips through an
975
improved school budget situation. I was very upset with the Principal’s responses on both
976
occasions. Just because it’s legal doesn’t make it right.
977
After that day’s U.S. History class, Jesse came to speak to me. Jesse said a group
978
of students had been meeting in the cafeteria to discuss ways to stop the NFC deal from
979
going through. Jesse said they’d conducted research which indicated consumption of
134
980
many NFC products included far more health risks than they’d previously thought,
981
especially related to childhood obesity and diabetes. The students also learned that the
982
deal was negotiated from NFC’s perspective by a Vice-President whose specific job was
983
to make similar public-private deals with schools across the nation who have active
984
sports programs but who are struggling financially.
985
Jesse asked if I could help and I agreed. My father is a close friend of the Phillips
986
School District Superintendent. I used this connection to arrange a meeting between the
987
Superintendent, Principal, myself, Jesse and a few other students. Unfortunately, this
988
meeting was similar to the one with the Principal, who glared at me throughout the
989
meeting. The superintendent didn’t say much to the students and concluded the meeting
990
by thanking myself and the students for our concern but expressing support for the
991
Principal and the NFC contract.
992
Several days after that, we were discussing the Civil Rights movement and Martin
993
Luther King Jr. in class. Jesse jumped into the discussion and asked if similar techniques
994
as those used by the civil rights protesters could be used to stop the NFC contract. Jesse
995
suggested that students use what they’ve learned from class and organize a protest.
996
Several other students expressed their support. I stopped the discussion at this point as
997
although non-violent protests were in general related to the topic I was teaching about
998
that day, organizing a protest was not the topic, and in addition was inappropriate for
999
discussion in the class.
1000
In the following days, I began to see Occupy leaflets and flyers in the school that
1001
opposed the NFC deal and included negative facts regarding NFC and its products. There
1002
were also posters with links to an online petition that was calling upon the school to stop
135
1003
the NFC project in order to hold public hearings on the deal and its impact on the health
1004
and welfare of Phillips students as well as the educational function of the school. At the
1005
time I signed the petition, it had over 1500 signatures. Jesse told me that students had
1006
created a group called “Occupy the Field” to attempt to block the NFC deal. Jesse asked
1007
me to attend a meeting.
1008
The following day, I was in attendance at an after school meeting of the Occupy
1009
students in the cafeteria. I was asked what Occupy would need to do in order to be
1010
considered an official student group. Given my position on the committee that oversees
1011
such groups, I was familiar with the procedures. I explained that Occupy would need to
1012
apply as a group, draft a constitution and elect student leaders. I also discussed the
1013
difference between curriculum and non-curriculum student groups. I used the History
1014
Club as an example of a curriculum related group, because history is a subject taught in
1015
school. The Key Club, which is service project oriented, is considered a non-curriculum
1016
group. Current policy only allows use of school facilities to registered curriculum-related
1017
groups. I also explained Phillips’ policy doesn’t allow for discrimination towards any
1018
student group based on the religious, political or philosophical nature of its activities.
1019
Given our previous class discussion, I suggested that Occupy could be considered
1020
a curriculum based student group as many of the activities are based on historical
1021
examples and philosophies routinely taught in History and Government classes. I also
1022
told them Principal Gomez had the final say in such matters so I encouraged Occupy to
1023
apply to be a recognized student group at the next opportunity. I offered to be its teacher
1024
advisor if they did apply. I knew at that point that if Occupy did not apply to be a student
1025
group that my continued involvement with them could be a problem for me as I was only
136
1026
allowed to advise registered curriculum based student groups and would be required by
1027
my teaching contract to enforce the leaflet and facilities use rules against them.
1028
After the meeting, Occupy continued to post flyers and engage in protest activities
1029
both in and around the school. The school was tense as sides started to form and argue
1030
with each other in the hallways. Some students started interrupting Occupy meetings in
1031
the cafeteria, plus I heard from other teachers that all anyone wanted to talk about was
1032
Occupy, NFC and the stadium deal. Jesse told me that Occupy had chosen not to apply as
1033
a student group as they didn’t agree with the requirements, such as electing leaders. In
1034
subsequent classes, Jesse and a couple of other students used every possible opportunity
1035
to tie the class discussion to Occupy’s activities. As Occupy became more active, I tried
1036
to arrange another meeting with the Principal or Superintendent but was denied. The
1037
school then began instructing maintenance staff to remove the flyers each day and
1038
installed more security cameras, including in the cafeteria where Occupy often met.
1039
Jesse showed me a letter sent to his parents and signed by the Principal. He often
1040
came to me for advice and given my interest in Occupy I was not surprised he sought my
1041
feedback. The letter stated Occupy was not a registered student group and that Occupy
1042
handouts violated school policy. Going forward, Occupy was prohibited from meeting or
1043
distributing literature on school property. The letter also threatened disciplinary action if
1044
these activities continued. I noticed a similar message on school bulletin boards that day.
1045
I told Jesse that the letter, as he knew, correctly cited violations of the rules in the student
1046
handbook even if he thought the rules were contrary to the constitution. I know there are
1047
different rules that apply to students in school so I assumed Jesse did as well as we had
1048
talked about it in class.
137
1049
Principal Gomez also sent the staff a copy of the letter and asked us to bring any
1050
of the prohibited activities to the Principal’s attention immediately. Of course I didn’t do
1051
that even though I had seen Occupy students copying fliers, posting them on walls, and
1052
meeting in unused classrooms when they weren’t supposed to and the classrooms should
1053
have been locked. It appeared to me that I was not the only teacher looking the other way
1054
at convenient times.
1055
The next day, Jesse told me that students were discussing a proposal to set up a
1056
tent city near the entrance to the football field. Occupy was going to meet and vote on the
1057
proposal later that evening. School policy allows all students access to the field when no
1058
events are scheduled and none were scheduled for that night so I didn’t think I needed to
1059
inform the Principal of this possibility. I heard on the radio after my workout that indeed
1060
Occupy had decided to up the ante by occupying some school property. When I arrived,
1061
there were probably 10-12 tents and at least 40 students. The students had set up signs
1062
protesting NFC and covering up their logo. There were some posted “tent city” rules—I
1063
think they got them off a site about Occupy Wall Street. The rules were: no violence; no
1064
drugs; no alcohol; no sleeping; no fires; decisions by consensus. I set up my own tent and
1065
stayed with the students, mostly to be an admittedly self appointed liaison between the
1066
students and the school, and between the students and the police.
1067
The night was very calm, with many students doing homework. I had an excellent
1068
discussion with several of them regarding how the protest echoed some historical
1069
examples we’d discussed in class and how the 1st Amendment protects such activity.
1070
Several parents and even a few police officers visited the site, but no one made any
1071
attempts to stop or remove the students. No students engaged in any violent action. One
138
1072
student was vocally encouraging more direct activity such as disrupting construction
1073
preparations or blocking access to the field. As I was on the periphery and it was dark I
1074
wasn’t able to identify this student although I could recognize most everyone else there.
1075
The following morning, I arrived at school to a voicemail from my father who
1076
stated the Superintendent had passed along to him that teachers who were involved with
1077
Occupy may risk losing their jobs. Jesse and several of the more active Occupy students
1078
were not in class that day. I did see several police officers in the building but, to my
1079
knowledge, no students were charged with any crime. The next day, I learned the school
1080
had filed a lawsuit against Jesse and four other students. I met with the principal and was
1081
told that any further encouragement of Occupy’s activities may result in discipline or
1082
termination. I reminded Gomez that in the event the school had any issue with me it
1083
needed to be addressed by arbitration as required by the union contract. Even though I
1084
felt the terms of my union contract protected from reprisals by the school I concluded that
1085
it was a distraction to my teaching and therefore I decided I needed to scale back my
1086
involvement. I’m a witness voluntarily in this case and I support the students’ rights to
1087
protest. These students are intelligent, passionate and putting what they’ve learned in
1088
class into action. I was glad the students filed their own action and I hope they win.
1089
However, I didn’t attend any other Occupy meetings or allow class discussion of
1090
Occupy’s activities following my discussion with Principal Gomez the day after I visited
1091
the tent city.
1092
1093
1094
139
1095
STATEMENT OF PAT JACOBS
1096
School Custodian - Defense
1097
I’m Pat Jacobs, one of the custodians at Phillips High School. I’ve worked at the
1098
high school for over 15 years, having started about a year after graduating from the
1099
school in 1998. I’ve lived in and around this community my whole life and know many
1100
of the families that have students in the school. I also know all the teachers and staff at
1101
the school. A large number of them, including Principal Gomez, were here when I was in
1102
school. A lot has changed over the years in the way the high school is operated. No one
1103
trusts the students any more, there seems to be a rule governing everything from
1104
bathroom breaks to cell phones to cars. And just a few years ago they installed metal
1105
detectors just because one student got caught with a knife in his locker. That of course led
1106
to hiring security guards, cop wannabes, who I suspect may be confiscating more “items”
1107
from students than they’re turning in to the administration. And then they put in cameras
1108
to view the parking lots and school entrances. No wonder I can’t get a raise with all this
1109
money spent on spying on students
1110
In my opinion this whole situation is Principal Gomez’s fault. The Principal is
1111
very “old school” in terms of how a school should be operated. Simply put, Principal
1112
Gomez favors order over disorder, compliance over controversy, and a robust sports
1113
program over all else—something to do with school reputation and parental pressure to
1114
stay up with the wealthier school districts. This paranoia by Principal Gomez about
1115
students compromising the integrity and mission of the school has only gotten worse as
1116
time has gone by—Principal Gomez rarely leaves the main office and doesn’t interact
140
1117
with the students as in the past—there are Vice Principals who do that. This Principal
1118
doesn’t trust any of the students, even the good kids—they are all suspects.
1119
For example when rap and rap culture became popular around here about 10 years
1120
ago Principal Gomez banned students from wearing “colors”, baggy pants, and do-rags;
1121
and as I said when a student was caught with a large hunting knife in their possession a
1122
couple of years back Principal Gomez had metal detectors installed at all the school
1123
entrances and hired security guards; and, more recently, Principal Gomez initiated a
1124
mandatory student group registration process and banned all non-curriculum related
1125
student groups from using school facilities after a group of students calling themselves
1126
“the invisibles” insisted on using the teacher’s lounge to sell brownies to raise money for
1127
the Dakota Allen Legal Defense Fund.
1128
In my opinion these Occupy kids are harmless. Sure they talk a big game, talking
1129
about lying down in front of earthmovers or chaining themselves to the stadium gates,
1130
whatever, they’re never going to follow through. High school kids rarely do. A couple of
1131
years back they were going to “cripple” the school internet after filters were installed to
1132
prevent access to sites the administration deemed offensive, inappropriate, or contrary to
1133
community standards. Didn’t happen. Then, the school banned cell phones in classes and
1134
before that they were going to have a student strike when the administration suspended
1135
some students for trying to publish student evaluations of teachers. Never happened. And
1136
of course every couple of years there’s a call for protests about prohibitions on certain
1137
kinds of dancing at the prom or what the valedictorian isn’t allowed to say at graduation.
1138
The Principal overreacting causes the most problems.
141
1139
Anyway, shortly after it was announced, Principal Gomez apparently concluded
1140
that some students were out to sabotage his deal with National Fructose Corporation for
1141
the stadium turf and vending machine business. The Principal called me to the main
1142
administration office and told me that the school wanted to catch those pesky Occupy
1143
kids red handed at their protest meetings and using school equipment to copy their
1144
“inflammatory” leaflets. In addition to the cameras already installed at the school
1145
entrances, Principal Gomez ordered me to install security cameras in the hallways, the
1146
cafeteria, and every room with a school copier.
1147
probably have them in the restrooms and locker rooms if Principal Gomez thought the
1148
school could get away with it. The Principal wanted to hire someone to do nothing but sit
1149
and watch the camera monitors all day but the school board wouldn’t pay for it. So the
1150
monitors are in Principal Gomez’s private office. Complete waste of time and money if
1151
you ask me. And all because a big company wants to have its name on our stadium—a
1152
stadium named Freedom Field to honor our war heroes, like my father who served
1153
honorably in the Vietnam War, and friends of mine who have done tours and taken
1154
injuries in our recent wars in Libya, Afghanistan and Iraq.
I’m sure Principal Gomez would
1155
At the same time Principal Gomez told the custodial staff that they were to
1156
remove all Occupy related leaflets and handouts from school property and turn the
1157
material over to the Assistant Principal for Student Conduct. The Principal said the
1158
leaflets were inappropriate as they contained slander and curse words and hadn’t been
1159
approved. I never knew that flyers had to be approved. The Principal said that three times
1160
a day I was to circulate through the school taking down Occupy leaflets from bulletin
1161
boards and walls and removing them from tables in the cafeteria. This was a task I
142
1162
normally did at the end of each week after the students had cleared out and then I only
1163
took down leaflets that were outdated, business ads for products, tear off ads selling stuff
1164
or flyers that had been defiled with curse words. Apparently I was also supposed to
1165
remove leaflets that were not placed by teachers or authorized student groups but I did
1166
not have a complete list of either and quite honestly I did not feel comfortable interfering
1167
with what I consider to be free speech.
1168
I’m no lawyer but I thought students had free speech rights just like adults,
1169
although I could be wrong as I never paid much attention to the government classes when
1170
I went to school, and my own lawyer was a joke and no help when I should have turned
1171
in that security guard who entrapped me. Anyway I don’t like being a cop or being
1172
around cops so I decided to do only what I was specifically ordered to do in terms of my
1173
job, not in terms of being a political correctness officer.
1174
As there was a lot of local newspaper coverage of the Occupy “uprising” as they
1175
called it, I started following the story online. I’m a little tech savvy from experience in
1176
the school with phone systems, computer terminals and cameras. So I signed up for the
1177
Occupy twitter feed and I “liked” the Occupy Facebook page—since there is no privacy
1178
on either of these I used a fake name, Nathan S. Adams, with a newly created e-mail
1179
account to register. Sounded like a founding father’s name to me. Although there was a
1180
lot of good debate in the Facebook posts there was also some typical crazy anarchist
1181
chatter there and on the Twitter feed as well. I wonder if the school can figure out who is
1182
calling for more direct action as I haven’t heard any of the Occupy kids in the school
1183
saying that stuff, at least none I can remember right now. Maybe it was Mancuso, I don’t
1184
know.
143
1185
The Principal also asked me to be on the lookout for any students using school
1186
copiers to print Occupy materials. I’m not being paid to be a spy so although I noticed
1187
several of the Occupy Five students, including Jesse, using the school copiers at odd
1188
times I did not make any effort to determine what the students were copying. I also did
1189
not report this to Principal Gomez as lots of kids in the school use the copiers, some for
1190
themselves, some for the teachers—who knows what for and quite honestly who cares as
1191
long as they don’t break anything. All I know it that all kinds of flyers get taped up to
1192
walls and stalls and the like that I’m pretty sure don’t have the Principal’s approval and
1193
that I know often don’t have any student name on them. I guess Principal Gomez sees
1194
this political stuff as different.
1195
One of the Occupy kids I saw making copies was the so-called student who later I
1196
found out was a snitch and really a police officer named Casey Mancuso. I saw Mancuso
1197
making hundreds of leaflet copies at the school one night when I stayed late installing
1198
those security cameras. I was in Principal Gomez’s private office wiring and testing the
1199
new camera feeds into the monitors and saw Mancuso through one of the new security
1200
cameras I had installed. I hate to sound as paranoid as Principal Gomez acts but I wonder
1201
if Mancuso created offensive leaflets with the Occupy name on them and posted them to
1202
cast blame on the Occupy students?
1203
It’s not as if I wasn’t concerned about the protest getting out of hand as I was. It
1204
was clear to me that some of the Occupy kids were getting frustrated at the school
1205
basically saying get lost and the rhetoric at their meetings was escalating as the group
1206
tried to figure out how to respond to the real power in the school district—the bigwigs
1207
and the companies making money off students and their families. So yes I was concerned
144
1208
that things might get out of hand, so I did tell Principal Gomez when I overheard some
1209
students in one of the Occupy cafeteria meetings talking about the how some anti-
1210
fracking protestors had chained themselves to the gates of a fracking site to stop
1211
construction of the drilling pad. Some of the Occupy Five were at the meeting but I’m
1212
pretty sure it wasn’t any of them that mentioned that idea—anyway that would be
1213
crossing the line in my opinion so I asked and received permission to put a lock on the
1214
stadium fence gates, mostly to keep students from doing something stupid just before
1215
graduation.
1216
I also have an alternative motive for locking the gates as I want to see that
1217
artificial field installed. I know it’s the devil’s deal to sell the rights to the stadium and to
1218
the vending machines to a big company, but I also know that that’s the way the world
1219
works and it’s a compromise people make all the time. Sometimes you just have to go
1220
along to get along. Also my son plays middle school football and will be going to Phillips
1221
High School next year. I think it would be great for him to play on an artificial field and
1222
probably lessen his chances of getting hurt. He’s really talented and I hope he can get an
1223
athletic scholarship. Plus, we both love NFC sports drinks.
1224
Not unexpectedly that very night everything escalated. I had read on the Occupy
1225
Facebook page where five students had been given warning letters about their political
1226
activities at school. Apparently they had called a meeting and decided to fight fire with
1227
fire by setting up tents on school property just outside the stadium gate to protest the NFC
1228
deal. The new Facebook banner was entitled “Occupy the Field” and the profile picture
1229
was a power sign fist with the word “resist” on it. Local TV was all over the story
1230
running almost continuous coverage. The Principal must have been having a fit. I
145
1231
recognized a lot of the students at the school stadium site, including all of the Occupy
1232
Five, and one teacher, Chen. I liked Chen as Chen was one of the few teachers that
1233
treated me like a real human being and not just as a silent robo-janitor. I felt proud of the
1234
students standing up “to the man” and also glad I had put a lock on that gate. I started to
1235
feel guilty about setting up all the new cameras and tearing down their leaflets. I was also
1236
afraid of what an arrest may do to their careers; but, on the other hand I also remembered
1237
that when I had a chance to stand up to the man I didn’t and regret it to this day—who
1238
was I to tell those students to compromise their principles.
1239
Early the next morning, before school started, Principal Gomez called me into the
1240
office again and told me they had identified five Occupy students who they thought were
1241
the ringleaders of the effort to stop the NFC deal. Then Principal Gomez introduced me
1242
to a student I knew as Casey Sanderson, but who I learned was actually a rookie police
1243
officer, Casey Mancuso, on a covert drug investigation in the school. I was shocked as I
1244
had seen this snitch pretending to be a student at Occupy meetings, had seen the student-
1245
cop making copies like a normal student and had even seen them on the TV at the “tent
1246
city” with the other students. I thought something worse than I had imagined must be
1247
going down if they were putting undercover cops on the case. My defenses went on high
1248
alert. I wonder if this cop knew about my record. Was I a suspect? I mean I was one of
1249
the only people with access to Principal Gomez’s office after hours and the school
1250
computers had been hacked. Well, I decided to do as I was told and keep my head low
1251
and my mouth shut. I was then told to cut the locks off the lockers of five specific
1252
students, open the lockers, and package up all the contents, which I was to bring back to
1253
Principal Gomez. Mancuso went with me and claimed to have information that all five
146
1254
had violated school rules, were disrupting classes and were planning actions that could be
1255
illegal. That didn’t sound like the students I knew. Mancuso seemed eager to search the
1256
lockers and rifled through everything I took out, including clothes, notebooks, purses and
1257
books. I didn’t know why Mancuso was doing this as the officer had told me they did not
1258
have enough evidence yet to get a search warrant to search the students themselves.
1259
After I took all the materials back to Principal Gomez I took a sick day and left. I
1260
was feeling sick to my stomach due to what Principal Gomez was doing to my high
1261
school but I also wanted to get out of the line of fire now that the police were inside. It
1262
was becoming like a jail—and I should know as I’ve been in jail. I felt at risk and had to
1263
leave—the thought crossed my mind that maybe I should look for work at another school
1264
building and get out of here. The name of the stadium as Freedom Field no longer rings
1265
true under the present circumstances so maybe Fructose Field is actually a better name.
1266
After digesting all that has gone on, and this lawsuit here, I think it was wrong to
1267
do all this based on the word of a paid snitch, especially when the snitch is a cop
1268
pretending to be a student in a school that’s not so different than any other high school
1269
around here, other than a lot of the students and their families are poor. Anyway there are
1270
always people out there just trying to gain some advantage or edge by agreeing to inform
1271
on others getting them in trouble. I know this first hand as the summer after I graduated I
1272
was working at a large construction site and took some discarded copper tubing which I
1273
sold for cash. Turned out that the person who showed me the “discarded” tubing in
1274
exchange for splitting the profit from selling it was actually a security guard pretending to
1275
be a worker. He informed on me and denied any involvement in the incident. I was
1276
arrested and got fired, but fortunately my employer decided to drop criminal charges after
147
1277
I agreed to pay for the copper tubing. My father helped get me my job at Phillips as the
1278
high school grounds supervisor was a tax client of the firm my father worked for at the
1279
time. I’ll never have any use for snitches.
1280
To me the way out is simple. As much as I think an artificial turf field would be
1281
good for the school I think we need more discussion, maybe some public hearings, before
1282
moving forward as it’s clear the process was hidden, the decision controversial, and the
1283
relationship between NFC and Principal Gomez troubling. Delay the field for a year,
1284
have some public hearings, get students input and have a local referendum on the issue if
1285
necessary. Then if the project is a go, get some competitive bids. I mean why not?
148
EXHIBIT A
PHILLIPS HIGH SCHOOL STUDENT HANDBOOK
(SELECT PROVISIONS)
Student Rights and Responsibilities
Students, like all citizens, have rights guaranteed by the Constitution of the United
States including the First Amendment which ensures the freedom of religion, speech, press,
assembly and petition and the Fourteenth Amendment which guarantees due process and equal
protection. These rights will be provided to students to the extent that they are applicable in the
public school setting and as provided in Board policy and regulations. The rights of an
individual are preserved only by the protection and preservation of the rights of others.
A student is responsible for the way he or she exercises such rights. Each exercise of an
individual's rights must demonstrate respect for the rights of others. The student must recognize
the boundaries of his/her rights and accept the consequences of his/her actions. These
statements set forth the rights of students in the public schools of the district and the
responsibilities that are inseparable from these rights:
1. Civil rights, including the rights to equal educational opportunity and freedom from
discrimination; the responsibility not to discriminate against others.
2. The right to attend free public schools; the responsibility to attend school regularly
and to observe school rules essential for permitting others to learn at school.
3. The right to due process of law with respect to suspension and expulsion.
4. The right to free inquiry and expression; responsibility to observe reasonable rules
regarding these rights as applied to the public school setting.
5. The right to privacy as applied to the public school setting, which includes privacy in
respect to the student's school records as required by state and federal law.
A copy of the school discipline code of conduct will be posted in each of the schools
and given to each student. Copies of the code are available in the Student Services Office.
Non-School Sponsored Publications
The following guidelines shall give direction to the preparation and distribution of nonschool sponsored publications. Such publications must be written completely by students of
Phillips High School.
1. There shall be no solicitation of business and professional people or of any other
community group for advertisements.
2. Publication shall be printed outside the school. Neither school supplies nor equipment
may be used in the printing of non-school sponsored literature.
3. The manner of distribution in the school shall be in accordance with the following
guidelines established by the Principal and agreed to by the Board of Education:
a. Anyone wishing to distribute literature shall present a copy to the Principal
one day in advance of its planned distribution.
b. Non-school sponsored literature may be distributed only before 7:45 am and
after 3:05 pm in areas designated by the Principal.
c. No charge may be made for the literature; however, donations may be
accepted.
4. All persons contributing articles to such publications shall acknowledge authorship of
said articles by signing them and shall refrain from libel, obscenity, and irresponsible personal
attacks.
149
Search of a Student or Personal Property by School Authorities
When a student is suspected of possessing illegal, stolen or dangerous items on his
person, the Principal or her designee shall ask the student to reveal the item suspected to be on
his person. If the student refuses, the administrator may ask the student for permission to
conduct a search. If the student refuses permission, the administrator may then advise the
student's parent of the circumstances and obtain the consent of the parent to conduct the search.
No search of a student’s person will be conducted without the consent of either the student or
the student's parent.
The Principal or her designee may search your backpack or purse without your consent
or your parent’s consent if they have a reasonable suspicion that you are breaking the law or
violating a school rule.
Search of Lockers and Other School Property By School Authorities
Although a student and the School District may have joint control of lockers, desks or
other school property, the student never has exclusive control of this property. With respect to
lockers, desks and other school property, the following rules and standards shall be recognized
and applied.
1. Student lockers, desks and similar property are the property of the School District and
are provide solely as a convenience for students to use.
2. Student lockers, desks and similar property are to be used only for the purpose of
storing textbooks, school supplies, clothing and daily lunches.
3. Students should not consider the locker, desk or similar property to which they have
been assigned a private place.
4. Student lockers, desks or similar property are subject to random search by school
officials at any time and without notice.
The Principal or her designee may search any school property such as lockers and desks
used by a specific identifiable student under the following conditions:
1. The student must have been informed in advance of the rules and standards set forth
above and that a search may be conducted and items removed if the administration of the
school has facts supporting a reasonable belief that articles or materials are present therein that
might be injurious to the student or to others or that are likely to pose a threat to the
maintenance of discipline or order in the school.
2. At the discretion of the administrator, the student may be present when a search of his
property is undertaken and an attempt may be made to secure his consent.
3. The presence of a staff member shall be required in all instances of a search or
seizure of the property of the student.
Student Clubs
Under the Equal Access Act student groups in public high schools may not be denied
access to the facilities for meetings if other “non-curriculum related” groups are allowed to
meet on the property before or after school. Phillips may not and does not discriminate against
a group based on the religious, political or philosophical nature of its activities.
Phillips does not permit non-curriculum related student clubs to use school facilities for
meetings or activities. In order to use school facilities for meetings and special events student
clubs must register and be approved by the Principal or her designee and agree to comply with
all applicable school rules regarding membership and publications.
A student group is “non-curriculum related” if:
• the subject matter of the group is not taught in a class;
• the group’s subject matter does not concern the student body as a whole; and,
• participation in the group is not required for a course and does not result in credit.
150
For example, a French club that teaches French would be “curriculum related” under the
Equal Access Act, but a community service group is usually considered a “non-curriculum
related club.”
For curriculum related student clubs the approved club agrees that:
• the club’s meetings are voluntary and student-initiated;
• the club’s meetings are not sponsored by your school or the government;
• the club’s meetings do not interfere with school activities; and,
• people from outside the school do not regularly participate in the club’s activities.
151
Exhibit B
OCCUPY the FIELD
----STUDENTS JUST SAY NO TO ----






Corporate Control of Phillips H.S.
SD Sponsored Obesity & Diabetes
NFC Unfair Labor Practices
Secret Fat Cat Deals & Bribery
Trading Student Health for Profits
Privatizing Public Schools
Principals Without Principles
JOIN US
STOP THE NFC DEAL
SAVE FREEDOM FIELD
FB occupythefield occupythefield.org
#occupythefield
152
Exhibit C
Phillips High School Map
153
Exhibit D
Results for #occupythefield
CWash96 @ CWash96
Tent city is a go! Meet at FREEDOM Field tomorrow with all your gear! #occupythefield
Brainiac @Brainiac
Childhood obesity is an epidemic perpetuated by evil corporations like NFC. #occupythefield
J.S. Demos-Kratia @J.S. Demos-Kratia
Principal is an NFC stooge! #occupythefield
dehandle @ dehandle
Count me in! I’ll bring posterboards and markers  #occupythefield
J.S. Demos-Kratia @J.S. Demos-Kratia
School District’s fascist student group policy won’t silence us! True democracy will triumph
 #occupythefield
Firestarter @Firestarter
Hey @J.S. Demos-Kratia, Peaceful protest won’t work! U gotta do more to get thru to SD and
NFC. #occupythefield
QPInvisible @ QPInvisible
I wouldn’t miss it!!! #occupythefield
J.S. Demos-Kratia @J.S. Demos-Kratia
Just hacked Principal’s e-mail account—NFC owns that fool! #occupythefield
J.S. Demos-Kratia @J.S. Demos-Kratia
Can’t believe all the secret and illegal communications between Principal and NFC fat cats!
#occupythefield
Brainiac @Brainiac
Want diabetes with that burger and fries? Enjoy an NFC soft drink! #occupythefield
J.S. Demos-Kratia @J.S. Demos-Kratia
Just saw the memo online--Principal’s goon squad will be tearing down Occupy’s signage
today! #occupythefield
J.S. Demos-Kratia @J.S. Demos-Kratia
Will keep monitoring Principal and fighting the man from tent city. Gotta luv smart phones!
#occupythefield
154
The Constitution of the United States of America
AMENDMENT I
Congress shall make no law respecting an establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the Government for a redress of grievances.
AMENDMENT IV
The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.
155
The Supreme Court of the United States
Board of Education v. Mergens
496 U.S. 226 (1990)
Justice O'CONNOR delivered the opinion of the Court, except as to Part III.
This case requires us to decide whether the Equal Access Act, 98 Stat. 1302, 20 U.S.C. §§ 4071-4074, prohibits
Westside High School from denying a student religious group permission to meet on school premises during
noninstructional time, and if so, whether the Act, so construed, violates the Establishment Clause of the First
Amendment.
I
Respondents are current and former students at Westside High School, a public secondary school in Omaha,
Nebraska. At the time this suit was filed, the school enrolled about 1,450 students and included grades 10 to 12; in
the 1987-1988 school year, ninth graders were added. Westside High School is part of the Westside Community
School system, an independent public school district. Petitioners are the Board of Education of Westside
Community Schools (District 66); Wayne W. Meier, the president of the school board; James E. Findley, the
principal of Westside High School; Kenneth K. Hanson, the superintendent of schools for the school district; and
James A. Tangdell, the assistant superintendent of schools for the school district.
Students at Westside High School are permitted to join various student groups and clubs, all of which meet after
school hours on school premises. The students may choose from approximately 30 recognized groups on a
voluntary basis. A list of student groups, together with a brief description of each provided by the school, appears
in the Appendix to this opinion.
School Board Policy 5610 concerning "Student Clubs and Organizations" recognizes these student clubs as a "vital
part of the total education program as a means of developing citizenship, wholesome attitudes, good human
relations, knowledge and skills." App. 488. Board Policy 5610 also provides that each club shall have faculty
sponsorship and that
Page 496 U. S. 232
"clubs and organizations shall not be sponsored by any political or religious organization, or by any organization
which denies membership on the basis of race, color, creed, sex or political belief."
Ibid. Board Policy 6180, on "Recognition of Religious Beliefs and Customs" requires that "[s]tudents adhering to a
specific set of religious beliefs or holding to little or no belief shall be alike respected." Id. at 462. In addition,
Board Policy 5450 recognizes its students' "Freedom of Expression," consistent with the authority of the
Board. Id. at 489.
There is no written school board policy concerning the formation of student clubs. Rather, students wishing to
form a club present their request to a school official, who determines whether the proposed club's goals and
objectives are consistent with school board policies and with the school district's "Mission and Goals" -- a broadly
worded "blueprint" that expresses the district's commitment to teaching academic, physical, civic, and personal
skills and values. Id. at 473-478.
In January, 1985, respondent Bridget Mergens met with Westside's principal, Dr. Findley, and requested
permission to form a Christian club at the school. The proposed club would have the same privileges and meet on
the same terms and conditions as other Westside student groups, except that the proposed club would not have a
faculty sponsor. According to the students' testimony at trial, the club's purpose would have been, among other
things, to permit the students to read and discuss the Bible, to have fellowship, and to pray together. Membership
would have been voluntary and open to all students, regardless of religious affiliation.
Findley denied the request, as did associate superintendent Tangdell. In February, 1985, Findley and Tangdell
informed Mergens that they had discussed the matter with superintendent Hanson and that he had agreed that her
request should be denied. The school officials explained that school policy required all student clubs to have a
faculty sponsor,
Page 496 U. S. 233
which the proposed religious club would not or could not have, and that a religious club at the school would
violate the Establishment Clause. In March, 1985, Mergens appealed the denial of her request to the Board of
Education, but the Board voted to uphold the denial.
156
Respondents, by and through their parents as next friends, then brought this suit in the United States District Court
for the District of Nebraska, seeking declaratory and injunctive relief. They alleged that petitioners' refusal to
permit the proposed club to meet at Westside violated the Equal Access Act, 20 U.S.C. §§ 4071-4074, which
prohibits public secondary schools that receive federal financial assistance and that maintain a "limited open
forum" from denying "equal access" to students who wish to meet within the forum on the basis of the content of
the speech at such meetings, § 4071(a). Respondents further alleged that petitioners' actions denied them their First
and Fourteenth Amendment rights to freedom of speech, association, and the free exercise of religion. Petitioners
responded that the Equal Access Act did not apply to Westside, and that, if the Act did apply, it violated the
Establishment Clause of the First Amendment, and was therefore unconstitutional. The United States intervened in
the action pursuant to 28 U.S.C. § 2403 to defend the constitutionality of the Act.
The District Court entered judgment for petitioners. The court held that the Act did not apply in this case because
Westside did not have a "limited open forum" as defined by the Act -- all of Westside's student clubs, the court
concluded, were curriculum-related and tied to the educational function of the school. The court rejected
respondents' constitutional claims, reasoning that Westside did not have a limited public forum as set forth
in Widmar v. Vincent, 454 U. S. 263 (1981), and that Westside's denial of respondents' request was reasonably
related to legitimate pedagogical concerns, see Hazelwood School Dist. v. Kuhlmeier, 484 U. S. 260, 484 U. S.
273 (1988).
Page 496 U. S. 234
The United States Court of Appeals for the Eighth Circuit reversed. 867 F.2d 1076 (1989). The Court of Appeals
held that the District Court erred in concluding that all the existing student clubs at Westside were curriculumrelated. The Court of Appeals noted that the "broad interpretation" advanced by the Westside school officials
"would make the [Equal Access Act] meaningless" and would allow any school to "arbitrarily deny access to
school facilities to any unfavored student club on the basis of its speech content," which was "exactly the result
that Congress sought to prohibit by enacting the [Act]." Id. at 1078. The Court of Appeals instead found that
"[m]any of the student clubs at WHS, including the chess club, are noncurriculum-related." Id. at 1079.
Accordingly, because it found that Westside maintained a limited open forum under the Act, the Court of Appeals
concluded that the Act applied to "forbi[d] discrimination against [respondents'] proposed club on the basis of its
religious content." Ibid.
The Court of Appeals then rejected petitioners' contention that the Act violated the Establishment Clause. Noting
that the Act extended the decision in Widmar v. Vincent, supra, to public secondary schools, the Court of Appeals
concluded that "[a]ny constitutional attack on the [Act] must therefore be predicated on the difference between
secondary school students and university students." 867 F.2d at 1080 (footnote omitted). Because "Congress
considered the difference in the maturity level of secondary students and university students before passing the
[Act]," the Court of Appeals held, on the basis of Congress' factfinding, that the Act did not violate the
Establishment Clause. Ibid.
We granted certiorari, 492 U.S. 917 (1989), and now affirm.
II
A
In Widmar v. Vincent, 454 U. S. 263 (1981), we invalidated, on free speech grounds, a state university regulation
that prohibited
Page 496 U. S. 235
student use of school facilities "for purposes of religious worship or religious teaching.'"Id. at 454 U. S. 265. In
doing so, we held that an "equal access" policy would not violate the Establishment Clause under our decision
in Lemon v. Kurtzman, 403 U. S. 602, 403 U. S. 612-613 (1971). In particular, we held that such a policy would
have a secular purpose, would not have the primary effect of advancing religion, and would not result in excessive
entanglement between government and religion. Widmar, 454 U.S. at 454 U. S. 271-274. We noted, however, that
"[u]niversity students are, of course, young adults. They are less impressionable than younger students, and should
be able to appreciate that the University's policy is one of neutrality toward religion."
Id. at 454 U. S. 274, n. 14.
In 1984, Congress extended the reasoning of Widmar to public secondary schools. Under the Equal Access Act, a
public secondary school with a "limited open forum" is prohibited from discriminating against students who wish
to conduct a meeting within that forum on the basis of the "religious, political, philosophical, or other content of
the speech at such meetings." 20 U.S.C. §§ 4071(a) and (b). Specifically, the Act provides:
157
"It shall be unlawful for any public secondary school which receives Federal financial assistance and which has a
limited open forum to deny equal access or a fair opportunity to, or discriminate against, any students who wish to
conduct a meeting within that limited open forum on the basis of the religious, political, philosophical, or other
content of the speech at such meetings."
20 U.S.C. § 4071(a). A "limited open forum" exists whenever a public secondary school
"grants an offering to or opportunity for one or more noncurriculum related student groups to meet on school
premises during noninstructional time."
§ 4071(b). "Meeting" is defined to include "those activities of student groups which are permitted under a school's
limited open forum and are not directly related to the school curriculum." § 4072(3).
Page 496 U. S. 236
"Noninstructional time" is defined to mean "time set aside by the school before actual classroom instruction begins
or after actual classroom instruction ends." § 4072(4). Thus, even if a public secondary school allows only one
"noncurriculum related student group" to meet, the Act's obligations are triggered and the school may not deny
other clubs, on the basis of the content of their speech, equal access to meet on school premises during
noninstructional time.
The Act further specifies that "[s]chools shall be deemed to offer a fair opportunity to students who wish to
conduct a meeting within its limited open forum" if the school uniformly provides that the meetings are voluntary
and student-initiated; are not sponsored by the school, the government, or its agents or employees; do not
materially and substantially interfere with the orderly conduct of educational activities within the school; and are
not directed, controlled, conducted, or regularly attended by "nonschool persons." §§ 4071(c)(1), (2), (4), and (5).
"Sponsorship" is defined to mean
"the act of promoting, leading, or participating in a meeting. The assignment of a.teacher, administrator, or other
school employee to a meeting for custodial purposes does not constitute sponsorship of the meeting."
§ 4072(2). If the meetings are religious, employees or agents of the school or government may attend only in a
"nonparticipatory capacity." § 4071(c)(3). Moreover, a State may not influence the form of any religious activity,
require any person to participate in such activity, or compel any school agent or employee to attend a meeting if
the content of the speech at the meeting is contrary to that person's beliefs. §§ 4071(d)(1), (2), and (3).
Finally, the Act does not "authorize the United States to deny or withhold Federal financial assistance to any
school," § 4071(e), or
"limit the authority of the school, its agents or employees, to maintain order and discipline on school premises, to
protect the wellbeing of students and faculty, and to
Page 496 U. S. 237
assure that attendance of students at the meetings is voluntary."
§ 4071(f).
B
The parties agree that Westside High School receives federal financial assistance and is a public secondary school
within the meaning of the Act. App. 57-58. The Act's obligation to grant equal access to student groups is
therefore triggered if Westside maintains a "limited open forum" -- i.e., if it permits one or more "noncurriculum
related student groups" to meet on campus before or after classes.
Unfortunately, the Act does not define the crucial phrase "noncurriculum related student group." Our immediate
task is therefore one of statutory interpretation. We begin, of course, with the language of the statute. See, e.g.,
Mallard v. U.S. District Court, 490 U. S. 294, 490 U. S. 300; United States v. James, 478 U. S. 597, 478 U. S.
604(1986). The common meaning of the term "curriculum" is "the whole body of courses offered by an
educational institution or one of its branches." Webster's Third New International Dictionary 557 (1976); see
also Black's Law Dictionary 345 (5th ed. 1979) ("The set of studies or courses for a particular period, designated
by a school or branch of a school"). Cf. Hazelwood School Dist. v. Kuhlmeier, 484 U.S. at 484 U. S. 271 (high
school newspaper produced as part of the school's journalism class was part of the curriclum). Any sensible
interpretation of "noncurriculum related student group" must therefore be anchored in the notion that such student
groups are those that are not related to the body of courses offered by the school. The difficult question is the
degree of "unrelatedness to the curriculum" required for a group to be considered "noncurriculum related."
158
The Act's definition of the sort of "meeting[s]" that must be accommodated under the statute, § 4071(a), sheds
some light on this question. "[T]he term meeting' includes those activities of student groups which are . . .
not directly related to the school curriculum." § 4072(3) (emphasis added). Congress'
Page 496 U. S. 238
use of the phrase "directly related" implies that student groups directly related to the subject matter of courses
offered by the school do not fall within the "noncurriculum related" category, and would therefore be considered
"curriculum related."
The logic of the Act also supports this view, namely, that a curriculum-related student group is one that has more
than just a tangential or attenuated relationship to courses offered by the school. Because the purpose of granting
equal access is to prohibit discrimination between religious or political clubs on the one hand and other
noncurriculum-related student groups on the other, the Act is premised on the notion that a religious or political
club is itself likely to be a noncurriculum-related student group. It follows, then, that a student group that is
"curriculum related" must at least have a more direct relationship to the curriculum than a religious or political
club would have.
Although the phrase "noncurriculum related student group" nevertheless remains sufficiently ambiguous that we
might normally resort to legislative history, see, e.g., James, supra, 478 U.S. at 478 U. S. 606, we find the
legislative history on this issue less than helpful. Because the bill that led to the Act was extensively rewritten in a
series of multilateral negotiations after it was passed by the House and reported out of committee by the Senate,
the committee reports shed no light on the language actually adopted. During congressional debate on the subject,
legislators referred to a number of different definitions, and thus both petitioners and respondents can cite to
legislative history favoring their interpretation of the phrase. Compare 130 Cong.Rec. 19223 (1984) (statement of
Sen. Hatfield) (curriculum-related clubs are those that are "really a kind of extension of the classroom"),
with ibid. (statement of Sen. Hatfield) (in response to question whether school districts would have full authority
to decide what was curriculum-related, "[w]e in no way seek to limit that discretion"). See Laycock, Equal Access
and Moments of Silence: The Equal
Page 496 U. S. 239
Status of Religious Speech by Private Speakers, 81 Nw.U.L.Rev. 1, 37-39 (1986).
We think it significant, however, that the Act, which was passed by wide, bipartisan majorities in both the House
and the Senate, reflects at least some consensus on a broad legislative purpose. The committee reports indicate that
the Act was intended to address perceived widespread discrimination against religious speech in public
schools,see H.R.Rep. No. 98-710, p. 4 (1984); S.Rep. No. 98-357, pp. 10-11 (1984), and, as the language of the
Act indicates, its sponsors contemplated that the Act would do more than merely validate the status quo. The
committee reports also show that the Act was enacted in part in response to two federal appellate court decisions
holding that student religious groups could not, consistent with the Establishment Clause, meet on school premises
during noninstructional time. See H.R. Rep. No. 98-710, supra, at 3-6 (discussing Lubbock Civil Liberties Union v.
Lubbock Independent School Dist., 669 F.2d 1038, 1042-1048 (CA5 1982), cert. denied, 459 U.S. 1155-1156
(1983), andBrandon v. Guilderland Bd. of Ed., 635 F.2d 971 (CA2 1980), cert. denied, 454 U.S. 1123 (1981));
S.Rep. No. 98-357, supra, at 6-9, 11-14 (same). A broad reading of the Act would be consistent with the views of
those who sought to end discrimination by allowing students to meet and discuss religion before and after classes.
In light of this legislative purpose, we think that the term "noncurriculum related student group" is best interpreted
broadly to mean any student group that does not directly relate to the body of courses offered by the school. In our
view, a student group directly relates to a school's curriculum if the subject matter of the group is actually taught,
or will soon be taught, in a regularly offered course; if the subject matter of the group concerns the body of courses
as a whole; if participation in the group is required for a particular course; or if participation in the group results in
academic
Page 496 U. S. 240
credit. We think this limited definition of groups that directly relate to the curriculum is a common sense
interpretation of the Act that is consistent with Congress' intent to provide a low threshold for triggering the Act's
requirements.
For example, a French club would directly relate to the curriculum if a school taught French in a regularly offered
course or planned to teach the subject in the near future. A school's student government would generally relate
directly to the curriculum to the extent that it addresses concerns, solicits opinions, and formulates proposals
pertaining to the body of courses offered by the school. If participation in a school's band or orchestra were
159
required for the band or orchestra classes, or resulted in academic credit, then those groups would also directly
relate to the curriculum. The existence of such groups at a school would not trigger the Act's obligations.
On the other hand, unless a school could show that groups such as a chess club, a stamp collecting club, or a
community service club fell within our description of groups that directly relate to the curriculum, such groups
would be "noncurriculum related student groups" for purposes of the Act. The existence of such groups would
create a "limited open forum" under the Act and would prohibit the school from denying equal access to any other
student group on the basis of the content of that group's speech. Whether a specific student group is a
"noncurriculum related student group" will therefore depend on a particular school's curriculum, but such
determinations would be subject to factual findings well within the competence of trial courts to make.
Petitioners contend that our reading of the Act unduly hinders local control over schools and school activities, but
we think that schools and school districts nevertheless retain a significant measure of authority over the type of
officially recognized activities in which their students participate. See, e.g., Hazelwood School Dist. v.
Kuhlmeier, 484 U. S. 260 (1988); Bethel School Dist. No. 403 v. Fraser, 478 U.S.
Page 496 U. S. 241
675 (1986). First, schools and school districts maintain their traditional latitude to determine appropriate subjects
of instruction. To the extent that a school chooses to structure its course offerings and existing student groups to
avoid the Act's obligations, that result is not prohibited by the Act. On matters of statutory interpretation, "[o]ur
task is to apply the text, not to improve on it." Pavelic & LeFlore v. Marvel Entertainment Group, 493 U. S.
120, 493 U. S. 126 (1989) (slip op., at 6). Second, the Act expressly does not limit a school's authority to prohibit
meetings that would "materially and substantially interfere with the orderly conduct of educational activities
within the school." § 4071(c)(4); cf. Tinker v. Des Moines Independent Community School Dist., 393 U. S.
503, 393 U. S. 509 (1969). The Act also preserves
"the authority of the school, its agents or employees, to maintain order and discipline on school premises, to
protect the wellbeing of students and faculty, and to assure that attendance of students, at meetings is voluntary."
§ 4071(f). Finally, because the Act applies only to public secondary schools that receive federal financial
assistance, § 4071(a), a school district seeking to escape the statute's obligations could simply forgo federal
funding. Although we do not doubt that in some cases this may be an unrealistic option, Congress clearly sought to
prohibit schools from discriminating on the basis of the content of a student group's speech, and that obligation is
the price a federally funded school must pay if it opens its facilities to noncurriculum-related student groups.
The dissent suggests that
"an extracurricular student organization is 'noncurriculum related' if it has as its purpose (or as part of its purpose)
the advocacy of partisan theological, political, or ethical views."
Post at 496 U. S. 276; see also id. at 496 U. S. 271, 496 U. S. 290 (Act is triggered only if school permits
"controversial" or "distasteful" groups to use its facilities); post at496 U. S. 291 ("noncurriculum" subjects are
those that "cannot properly be included in a public school curriculum'"). This interpretation of the Act, we are
told, is mandated by Congress' intention to
Page 496 U. S. 242
"track our own Free Speech Clause jurisprudence," post at 496 U. S. 279, n. 10, by incorporating Widmar's notion
of a "limited public forum" into the language of the Act. Post at 496 U. S. 271-272.
This suggestion is flawed for at least two reasons. First, the Act itself neither uses the phrase "limited public
forum" nor so much as hints that that doctrine is somehow "incorporated" into the words of the statute. The
operative language of the statute, 20 U.S.C. § 4071(a), of course, refers to a "limited open forum," a term that is
specifically defined in the next subsection, § 4071(b). Congress was presumably aware that "limited public
forum," as used by the Court, is a term of art, see, e.g., Perry Ed. Assn. v. Perry Local Educators' Assn., 460 U. S.
37, 460 U. S. 45-49 (1983), and had it intended to import that concept into the Act, one would suppose that it
would have done so explicitly. Indeed, Congress' deliberate choice to use a different term -- and to define that term
-- can only mean that it intended to establish a standard different from the one established by our free speech
cases. See Laycock, 81 Nw.U.L. Rev. at 36 ("The statutory limited open forum' is an artificial construct, and
comparisons with the constitutional [`limited public forum'] cases can be misleading"). To paraphrase the dissent,
"[i]f Congress really intended to [incorporate] Widmar for reasons of administrative clarity, Congress kept its
intent well hidden, both in the statute and in the debates preceding its passage." Post at 496 U. S. 281-282, n. 15.
Second, and more significant, the dissent's reliance on the legislative history to support its interpretation of the Act
shows just how treacherous that task can be. The dissent appears to agree with our view that the legislative history
160
of the Act, even if relevant, is highly unreliable, see, e.g., post at 496 U. S. 274-275, n. 5, and 496 U. S. 281-282,
n. 15, yet the interpretation it suggests rests solely on a few passing, general references by legislators to our
decision in Widmar, see post at 496 U. S. 274 and n. 4. We think that reliance on legislative history is hazardous at
best, but where "not even the sponsors of the bill
Page 496 U. S. 243
knew what it meant,'" post at 496 U. S. 281, n. 15 (quoting Laycock, supra, at 38 (citation omitted)), such reliance
cannot form a reasonable basis on which to interpret the text of a statute. For example, the dissent appears to
place great reliance on a comment by Senator Levin that the Act extends the rule in Widmar to secondary
schools, see post at 496 U. S. 274, n. 4, but Senator Levin's understanding of the "rule," expressed in the same
breath as the statement on which the dissent relies, fails to support the dissent's reading of the Act. See 130
Cong.Rec. 19236 (1984) ("The pending amendment will allow students equal access to secondary schools studentinitiated religious meetings before and after school where the school generally allows groups of secondary school
students to meet during those times") (emphasis added). Moreover, a number of Senators, during the same debate,
warned that some of the views stated did not reflect their own views. See, e.g., ibid. ("I am troubled with the
legislative history that you are making here") (statement of Sen. Chiles); id. at 19237 ("[T]here have been a
number of statements made on the floor today which may be construed as legislative history modifying what my
understanding was or what anyone's understanding might be of this bill") (statement of Sen. Denton). The only
thing that can be said with any confidence is that some Senators may have thought that the obligations of the Act
would be triggered only when a school permits advocacy groups to meet on school premises during
noninstructional time. That conclusion, of course, cannot bear the weight the dissent places on it.
C
The parties in this case focus their dispute on 10 of Westside's approximately 30 voluntary student clubs: Interact
(a service club related to Rotary International); Chess; Subsurfers (a club for students interested in scuba diving);
National Honor Society; Photography; Welcome to Westside (a club to introduce new students to the
Page 496 U. S. 244
school); Future Business Leaders of America; Zonta (the female counterpart to Interact); Student Advisory Board
(student government); and Student Forum (student government). App. 60. Petitioners contend that all of these
student activities are curriculum-related because they further the goals of particular aspects of the school's
curriculum. Welcome to Westside, for example, helps "further the School's overall goal of developing effective
citizens by requiring student members to contribute to their fellow students." Brief for Petitioners 16. The student
government clubs "advance the goals of the School's political science classes by providing an understanding and
appreciation of government processes." Id. at 17. Subsurfers furthers "one of the essential goals of the Physical
Education Department -- enabling students to develop lifelong recreational interests." Id. at 18. Chess
"supplement[s] math and science courses because it enhances students' ability to engage in critical thought
processes."Id. at 18-19. Participation in Interact and Zonta "promotes effective citizenship, a critical goal of the
WHS curriculum, specifically the Social Studies Department." Id. at 19.
To the extent that petitioners contend that "curriculum related" means anything remotely related to abstract
educational goals, however, we reject that argument. To define "curriculum related" in a way that results in almost
no schools having limited open fora, or in a way that permits schools to evade the Act by strategically describing
existing student groups, would render the Act merely hortatory. See 130 Cong.Rec. 19222 (1984) (statement of
Sen. Leahy) ("[A] limited open forum should be triggered by what a school does, not by what it says"). As the
court below explained:
"Allowing such a broad interpretation of 'curriculum-related' would make the [Act] meaningless. A school's
administration could simply declare that it maintains a closed forum and choose which student clubs it wanted to
allow by tying the purposes of those clubs to
Page 496 U. S. 245
some broadly defined educational goal. At the same time, the administration could arbitrarily deny access to
school facilities to any unfavored student club on the basis of its speech content. This is exactly the result that
Congress sought to prohibit by enacting the [Act]. A public secondary school cannot simply declare that it
maintains a closed forum and then discriminate against a particular student group on the basis of the content of the
speech of that group."
867 F.2d 1076, 1078 (CA8 1989). See also Garnett v. Renton School Dist. No. 403,874 F.2d 608, 614 (CA9 1989)
("Complete deference [to the school district] would render the Act meaningless because school boards could
circumvent the Act's requirements simply by asserting that all student groups are curriculum related").
161
Rather, we think it clear that Westside's existing student groups include one or more "noncurriculum related
student groups." Although Westside's physical education classes apparently include swimming, see Record, Tr. of
Preliminary Injunction Hearing 25, counsel stated at oral argument that scuba diving is not taught in any regularly
offered course at the school, Tr. of Oral Arg. 6. Based on Westside's own description of the group, Subsurfers does
not directly relate to the curriculum as a whole in the same way that a student government or similar group might.
App. 485-486. Moreover, participation in Subsurfers is not required by any course at the school, and does not
result in extra academic credit. Id. at 170-171, 236. Thus, Subsurfers is a "noncurriculum related student group"
for purposes of the Act. Similarly, although math teachers at Westside have encouraged their students to play
chess, id., at 442-444, chess is not taught in any regularly offered course at the school, Tr. of Oral Arg. 6, and
participation in the chess club is not required for any class and does not result in extra credit for any class, App.
302-304. The chess club is therefore another "noncurriculum related student group" at
Page 496 U. S. 246
Westside. Moreover, Westside's principal acknowledged at trial that the Peer Advocates program -- a service
group that works with special education classes -- does not directly relate to any courses offered by the school and
is not required by any courses offered by the school. Id. at 231-233; see also id. at 198-199 (participation in Peer
Advocates is not required for any course and does not result in extra credit in any course). Peer Advocates would
therefore also fit within our description of a "noncurriculum related student group." The record therefore supports
a finding that Westside has maintained a limited open forum under the Act.
Although our definition of "noncurriculum related student activities" looks to a school's actual practice, rather than
its stated policy, we note that our conclusion is also supported by the school's own description of its student
activities. As reprinted in the Appendix to this opinion, the school states that Band "is included in our regular
curriculum"; Choir "is a course offered as part of the curriculum"; Distributive Education "is an extension of the
Distributive Education class"; International Club is "developed through our foreign language classes"; Latin Club
is "designed for those students who are taking Latin as a foreign language"; Student Publications "includes classes
offered in preparation of the yearbook (Shield) and the student newspaper (Lance)"; Dramatics "is an extension of
a regular academic class"; and Orchestra "is an extension of our regular curriculum." These descriptions constitute
persuasive evidence that these student clubs directly relate to the curriculum. By inference, however, the fact that
the descriptions of student activities such as Subsurfers and chess do not include such references strongly suggests
that those clubs do not, by the school's own admission, directly relate to the curriculum. We therefore conclude
that Westside permits "one or more noncurriculum related student groups to meet on school premises during
noninstructional time," § 4071(b). Because Westside maintains a "limited open forum" under the Act, it is
prohibited from
Page 496 U. S. 247
discriminating, based on the content of the students' speech, against students who wish to meet on school premises
during noninstructional time.
The remaining statutory question is whether petitioners' denial of respondents' request to form a religious group
constitutes a denial of "equal access" to the school's limited open forum. Although the school apparently permits
respondents to meet informally after school, App. 315-316, respondents seek equal access in the form of official
recognition by the school. Official recognition allows student clubs to be part of the student activities program, and
carries with it access to the school newspaper, bulletin boards, the public address system, and the annual Club
Fair. Id. at 434-435. Given that the Act explicitly prohibits denial of "equal access . . . to . . . any students who
wish to conduct a meeting within [the school's] limited open forum" on the basis of the religious content of the
speech at such meetings, § 4071(a), we hold that Westside's denial of respondents' request to form a Christian club
denies them "equal access" under the Act.
Because we rest our conclusion on statutory grounds, we need not decide -- and therefore express no opinion on -whether the First Amendment requires the same result.
III
Petitioners contend that, even if Westside has created a limited open forum within the meaning of the Act, its
denial of official recognition to the proposed Christian club must nevertheless stand because the Act violates the
Establishment Clause of the First Amendment, as applied to the States through the Fourteenth Amendment.
Specifically, petitioners maintain that, because the school's recognized student activities are an integral part of its
educational mission, official recognition of respondents' proposed club would effectively incorporate religious
activities into the school's official program, endorse participation in the religious club, and provide
Page 496 U. S. 248
162
the club with an official platform to proselytize other students.
We disagree. In Widmar, we applied the three-part Lemon test to hold that an "equal access" policy, at the
university level, does not violate the Establishment Clause. See454 U.S. at 454 U. S. 271-275
(applying Lemon, 403 U.S. at 403 U. S. 612-613). We concluded that "an open-forum policy, including
nondiscrimination against religious speech, would have a secular purpose," 454 U.S. at 454 U. S. 271 (footnotes
omitted), and would in fact avoid entanglement with religion. See id. at 454 U. S. 272, n. 11 ("[T]he University
would risk greater entanglement' by attempting to enforce its exclusion of `religious worship' and `religious
speech'"). We also found that, although incidental benefits accrued to religious groups who used university
facilities, this result did not amount to an establishment of religion. First, we stated that a university's forum does
not "confer any imprimatur of state approval on religious sects or practices." Id. at 454 U. S. 274. Indeed, the
message is one of neutrality rather than endorsement; if a State refused to let religious groups use facilities open
to others, then it would demonstrate not neutrality but hostility toward religion.
"The Establishment Clause does not license government to treat religion and those who teach or practice it, simply
by virtue of their status as such, as subversive of American ideals and therefore subject to unique disabilities."
McDaniel v. Paty, 435 U. S. 618, 435 U. S. 641 (1978) (BRENNAN, J., concurring in judgment). Second, we
noted that "[t]he [University's] provision of benefits to [a] broad . . . spectrum of groups" -- both nonreligious and
religious speakers -- was "an important index of secular effect." 454 U.S. at 454 U. S. 274.
We think the logic of Widmar applies with equal force to the Equal Access Act. As an initial matter, the Act's
prohibition of discrimination on the basis of "political, philosophical, or other" speech as well as religious speech
is a sufficient basis for meeting the secular purpose prong of the Lemon test. See Edwards v. Aguillard, 482 U. S.
578, 482 U. S. 586 (1987)
Page 496 U. S. 249
(Court "is normally deferential to a [legislative] articulation of a secular purpose");Mueller v. Allen, 463 U. S.
388, 463 U. S. 394-395 (1983) (Court is "reluctan[t] to attribute unconstitutional motives to the States, particularly
when a plausible secular purpose for the State's program may be discerned from the face of the statute"). Congress'
avowed purpose -- to prevent discrimination against religious and other types of speech -- is undeniably
secular. See Corporation of Presiding Bishop, Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S.
327, 483 U. S. 335-336 (1987);Committee for Public Education and Religious Liberty v. Nyquist, 413 U. S.
756, 413 U. S. 773 (1973). Cf. 42 U.S.C. § 2000e-2(a) (prohibiting employment discrimination on grounds of race,
color, religion sex, or national origin). Even if some legislators were motivated by a conviction that religious
speech in particular was valuable and worthy of protection, that alone would not invalidate the Act, because what
is relevant is the legislative purpose of the statute, not the possibly religious motives of the legislators who enacted
the law. Because the Act on its face grants equal access to both secular and religious speech, we think it clear that
the Act's purpose was not to "endorse or disapprove of religion,'" Wallace v. Jaffree, 472 U. S. 38, 472 U. S.
56 (1985) (quotingLynch v. Donnelly, 465 U. S. 668, 465 U. S. 690 (1984) (O'CONNOR, J., concurring)).
Petitioners' principal contention is that the Act has the primary effect of advancing religion. Specifically,
petitioners urge that, because the student religious meetings are held under school aegis, and because the state's
compulsory attendance laws bring the students together (and thereby provide a ready-made audience for student
evangelists), an objective observer in the position of a secondary school student will perceive official school
support for such religious meetings. See County of Allegheny v. ACLU, 492 U. S. 573, 492 U. S. 593 (1989)
(Establishment Clause inquiry is whether the government "convey[s] or attempt[s] to convey a message that
religion or
Page 496 U. S. 250
a particular religious belief is favored or preferred'") (quoting Wallace v. Jaffree, supra,472 U.S. at 472 U. S.
70 (O'CONNOR, J., concurring in part and concurring in judgment)).
We disagree. First, although we have invalidated the use of public funds to pay for teaching state-required subjects
at parochial schools, in part because of the risk of creating
"a crucial symbolic link between government and religion, thereby enlisting -- at least in the eyes of
impressionable youngsters -- the powers of government to the support of the religious denomination operating the
school,"
Grand Rapids School Dist. v. Ball, 473 U. S. 373, 473 U. S. 385 (1985), there is a crucial difference between
government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing
religion, which the Free Speech and Free Exercise Clauses protect. We think that secondary school students are
mature enough and are likely to understand that a school does not endorse or support student speech that it merely
163
permits on a nondiscriminatory basis. Cf. Tinker v. Des Moines Independent Community School Dist., 393 U. S.
503 (1969) (no danger that high school students' symbolic speech implied school endorsement); West Virginia
State Bd. of Ed. v. Barnette, 319 U. S. 624 (1943) (same). See generally Note, 92 Yale L.J. 499, 507-509 (1983)
(summarizing research in adolescent psychology). The proposition that schools do not endorse everything they fail
to censor is not complicated.
"[P]articularly in this age of massive media information . . . the few years difference in age between high school
and college students [does not] justif[y] departing fromWidmar."
Bender v. Williamsport Area School Dist., 475 U. S. 534, 475 U. S. 556 (1986) (Powell, J., dissenting).
Indeed, we note that Congress specifically rejected the argument that high school students are likely to confuse an
equal access policy with state sponsorship of religion.See S.Rep. No. 98-357, p. 8 (1984); id. at 35 ("[S]tudents
below the college level are capable of distinguishing between State-initiated, school sponsored, or teacher-led
religious
Page 496 U. S. 251
speech on the one hand and student-initiated, student-led religious speech on the other"). Given the deference due
"the duly enacted and carefully considered decision of a coequal and representative branch of our
Government," Walters v. National Assn. of Radiation Survivors, 473 U. S. 305, 473 U. S. 319 (1985); see also
Rostker v. Goldberg, 453 U. S. 57, 453 U. S. 64 (1981), we do not lightly second-guess such legislative judgments,
particularly where the judgments are based in part on empirical determinations.
Second, we note that the Act expressly limits participation by school officials at meetings of student religious
groups, §§ 4071(c)(2) and (3), and that any such meetings must be held during "noninstructional time," § 4071(b).
The Act therefore avoids the problems of "the students' emulation of teachers as role models" and "mandatory
attendance requirements," Edwards v. Aguillard, 482 U.S. at 482 U. S. 584; see also Illinois ex rel. McCollum v.
Board of Education, 333 U. S. 203, 333 U. S. 209-210 (1948) (release time program invalid where students were
"released in part from their legal duty [to attend school] upon the condition that they attend the religious classes").
To be sure, the possibility of student peer pressure remains, but there is little if any risk of official state
endorsement or coercion where no formal classroom activities are involved and no school officials actively
participate. Moreover, petitioners' fear of a mistaken inference of endorsement is largely self-imposed, because the
school itself has control over any impressions it gives its students. To the extent a school makes clear that its
recognition of respondents' proposed club is not an endorsement of the views of the club's participants, see
Widmar, 454 U.S. at 454 U. S. 274, n. 14 (noting that university student handbook states that the university's name
will not be identified with the aims, policies, or opinions of any student organization or its members), students will
reasonably understand that the school's official recognition of the club evinces neutrality toward, rather than
endorsement of, religious speech.
Page 496 U. S. 252
Third, the broad spectrum of officially recognized student clubs at Westside, and the fact that Westside students
are free to initiate and organize additional student clubs,see App. 221-222, counteract any possible message of
official endorsement of or preference for religion or a particular religious belief. See Widmar, 454 U.S. at 454 U.
S. 274 ("The provision of benefits to so broad a spectrum of groups is an important index of secular effect").
Although a school may not itself lead or direct a religious club, a school that permits a student-initiated and
student-led religious club to meet after school, just as it permits any other student group to do, does not convey a
message of state approval or endorsement of the particular religion. Under the Act, a school with a limited open
forum may not lawfully deny access to a Jewish students' club, a Young Democrats club, or a philosophy club
devoted to the study of Nietzsche. To the extent that a religious club is merely one of many different studentinitiated voluntary clubs, students should perceive no message of government endorsement of religion. Thus, we
conclude that the Act does not, at least on its face and as applied to Westside, have the primary effect of advancing
religion. See id. at 454 U. S. 275 ("At least in the absence of empirical evidence that religious groups will
dominate [the university's] open forum, . . . the advancement of religion would not be the forum's primary effect'").
Petitioners' final argument is that, by complying with the Act's requirement, the school risks excessive
entanglement between government and religion. The proposed club, petitioners urge, would be required to have a
faculty sponsor who would be charged with actively directing the activities of the group, guiding its leaders, and
ensuring balance in the presentation of controversial ideas. Petitioners claim that this influence over the club's
religious program would entangle the government in day-to-day surveillance of religion of the type forbidden by
the Establishment Clause.
Page 496 U. S. 253
164
Under the Act, however, faculty monitors may not participate in any religious meetings, and nonschool persons
may not direct, control, or regularly attend activities of student groups. §§ 4071(c)(3) and (5). Moreover, the Act
prohibits school "sponsorship" of any religious meetings, § 4071(c)(2), which means that school officials may not
promote, lead, or participate in any such meeting, § 4072(2). Although the Act permits "[t]he assignment of a
teacher, administrator, or other school employee to the meeting for custodial purposes," ibid., such custodial
oversight of the student-initiated religious group, merely to ensure order and good behavior, does not
impermissibly entangle government in the day-to-day surveillance or administration of religious activities. See
Tony and Susan Alamo Foundation v. Secretary of Labor, 471 U. S. 290, 471 U. S. 305-306 (1985). Indeed, as the
Court noted in Widmar, a denial of equal access to religious speech might well create greater entanglement
problems in the form of invasive monitoring to prevent religious speech at meetings at which such speech might
occur.See Widmar, 454 U.S. at 454 U. S. 272, n. 11.
Accordingly, we hold that the Equal Access Act does not on its face contravene the Establishment Clause. Because
we hold that petitioners have violated the Act, we do not decide respondents' claims under the Free Speech and
Free Exercise Clauses. For the foregoing reasons, the judgment of the Court of Appeals is affirmed.
It is so ordered.
165
The Supreme Court of the United States
Clark v. Community for Creative Nonviolence
468 U.S. 288 (1984)
JUSTICE WHITE delivered the opinion of the Court.
The issue in this case is whether a National Park Service regulation prohibiting camping in certain parks violates
the First Amendment when applied to prohibit demonstrators from sleeping in Lafayette Park and the Mall in
connection with a demonstration intended to call attention to the plight of the homeless. We hold that it does not,
and reverse the contrary judgment of the Court of Appeals.
I
The Interior Department, through the National Park Service, is charged with responsibility for the management
and maintenance of the National Parks, and is authorized to promulgate rules and regulations for the use of the
parks in accordance with the purposes for which they were established.
Page 468 U. S. 290
16 U.S.C. §§ 1, 1a-1, 3. The network of National Parks includes the National Memorial-core parks, Lafayette Park
and the Mall, which are set in the heart of Washington, D.C., and which are unique resources that the Federal
Government holds in trust for the American people. Lafayette Park is a roughly 7-acre square located across
Pennsylvania Avenue from the White House. Although originally part of the White House grounds, President
Jefferson set it aside as a park for the use of residents and visitors. It is a "garden park with a . . . formal
landscaping of flowers and trees, with fountains, walks and benches." National Park Service, U.S. Department of
the Interior, White House and President's Park, Resource Management Plan 4.3 (1981). The Mall is a stretch of
land running westward from the Capitol to the Lincoln Memorial some two miles away. It includes the
Washington Monument, a series of reflecting pools, trees, lawns, and other greenery. It is bordered by, inter
alia, the Smithsonian Institution and the National Gallery of Art. Both the Park and the Mall were included in
Major Pierre L'Enfant's original plan for the Capital. Both are visited by vast numbers of visitors from around the
country, as well as by large numbers of residents of the Washington metropolitan area.
Under the regulations involved in this case, camping in National Parks is permitted only in campgrounds
designated for that purpose. 36 CFR § 50.27(a) (1983). No such campgrounds have ever been designated in
Lafayette Park or the Mall. Camping is defined as
"the use of park land for living accommodation purposes such as sleeping activities, or making preparations to
sleep (including the laying down of bedding for the purpose
Page 468 U. S. 291
of sleeping), or storing personal belongings, or making any fire, or using any tents or . . . other structure . . . for
sleeping or doing any digging or earth breaking or carrying on cooking activities."
Ibid. These activities, the regulation provides,
"constitute camping when it reasonably appears, in light of all the circumstances, that the participants, in
conducting these activities, are in fact using the area as a living accommodation regardless of the intent of the
participants or the nature of any other activities in which they may also be engaging."
Ibid. Demonstrations for the airing of views or grievances are permitted in the Memorial-core parks, but for the
most part only by Park Service permits. 36 CFR § 50.19 (1983). Temporary structures may be erected for
demonstration purposes, but may not be used for camping. 36 CFR § 50.19(e)(8) (1983).
In 1982, the Park Service issued a renewable permit to respondent Community for Creative Non-Violence
(CCNV) to conduct a wintertime demonstration in Lafayette Park and the Mall for the purpose of demonstrating
the plight of the
Page 468 U. S. 292
homeless. The permit authorized the erection of two symbolic tent cities: 20 tents in Lafayette Park that would
accommodate 50 people and 40 tents in the Mall with a capacity of up to 100. The Park Service, however, relying
on the above regulations, specifically denied CCNV's request that demonstrators be permitted to sleep in the
symbolic tents.
166
CCNV and several individuals then filed an action to prevent the application of the no-camping regulations to the
proposed demonstration, which, it was claimed, was not covered by the regulation. It was also submitted that the
regulations were unconstitutionally vague, had been discriminatorily applied, and could not be applied to prevent
sleeping in the tents without violating the First Amendment. The District Court granted summary judgment in
favor of the Park Service. The Court of Appeals, sitting en banc, reversed. Community for Creative Non-Violence
v. Watt, 227 U.S.App.D.C.19, 703 F.2d 586 (1983). The 11 judges produced 6 opinions. Six of the judges believed
that application of the regulations so as to prevent sleeping in the tents would infringe the demonstrators' First
Amendment right of free expression. The other five judges disagreed, and would have sustained the regulations as
applied to CCNV's proposed demonstration. We granted the Government's petition for certiorari, 464 U.S. 1016
(1983), and now reverse.
Page 468 U. S. 293
II
We need not differ with the view of the Court of Appeals that overnight sleeping in connection with the
demonstration is expressive conduct protected to some extent by the First Amendment. We assume for present
purposes, but do not decide, that such is the case, cf. United States v. O'Brien, 391 U. S. 367, 391 U. S. 376(1968),
but this assumption only begins the inquiry. Expression, whether oral or written or symbolized by conduct, is
subject to reasonable time, place, or manner restrictions. We have often noted that restrictions of this kind are
valid, provided that they are justified without reference to the content of the regulated speech, that they are
narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels
for communication of the information. City Council of Los Angeles v. Taxpayers for Vincent, 466 U. S.
789 (1984); United States v. Grace,461 U. S. 171 (1983); Perry Education Assn. v. Perry Local Educators'
Assn., 460 U. S. 37, 460 U. S. 45-46 (1983); Heffron v. International Society for Krishna Consciousness,
Page 468 U. S. 294
Inc., 452 U. S. 640, 452 U. S. 647-648 (1981); Virginia Pharmacy Board v. Virginia Citizens Consumer Council,
Inc., 425 U. S. 748, 425 U. S. 771 (1976); Consolidated Edison Co. v. Public Service Comm'n of N.Y., 447 U. S.
530, 447 U. S. 535 (1980).
It is also true that a message may be delivered by conduct that is intended to be communicative and that, in
context, would reasonably be understood by the viewer to be communicative. Spence v. Washington, 418 U. S.
405 (1974); Tinker v. Des Moines School District, 393 U. S. 503 (1969). Symbolic expression of this kind may be
forbidden or regulated if the conduct itself may constitutionally be regulated, if the regulation is narrowly drawn to
further a substantial governmental interest, and if the interest is unrelated to the suppression of free speech. United
States v. O'Brien, supra.
Petitioners submit, as they did in the Court of Appeals, that the regulation forbidding sleeping is defensible either
as a time, place, or manner restriction or as a regulation of symbolic conduct. We agree with that assessment. The
permit that was issued authorized the demonstration, but required compliance with 36 CFR § 50.19 (1983), which
prohibits "camping" on park lands, that is, the use of park lands for living accommodations, such as sleeping,
storing personal belongings, making fires, digging, or cooking. These provisions, including the ban on sleeping,
are clearly limitations on the manner in which the demonstration could be carried out. That sleeping, like the
symbolic tents themselves, may be expressive and part of the message delivered by the demonstration does not
make the ban any less a limitation on the manner of demonstrating, for reasonable time, place, or manner
regulations normally have the purpose and direct effect of limiting expression, but are nevertheless valid. City
Council of Los Angeles v. Taxpayers for Vincent, supra; Heffron v. International Society for Krishna
Consciousness, Inc., supra; Kovacs v. Cooper, 336 U. S. 77 (1949). Neither does the fact that
sleeping, arguendo, may be expressive
Page 468 U. S. 295
conduct, rather than oral or written expression, render the sleeping prohibition any less a time, place, or manner
regulation. To the contrary, the Park Service neither attempts to ban sleeping generally nor to ban it everywhere in
the parks. It has established areas for camping, and forbids it elsewhere, including Lafayette Park and the Mall.
Considered as such, we have very little trouble concluding that the Park Service may prohibit overnight sleeping in
the parks involved here.
The requirement that the regulation be content-neutral is clearly satisfied. The courts below accepted that view,
and it is not disputed here that the prohibition on camping, and on sleeping specifically, is content-neutral, and is
not being applied because of disagreement with the message presented. Neither was the regulation faulted, nor
could it be, on the ground that, without overnight sleeping, the plight of the homeless could not be communicated
in other ways. The regulation otherwise left the demonstration intact, with its symbolic city, signs, and the
167
presence of those who were willing to take their turns in a day-and-night vigil. Respondents do not suggest that
there was, or is, any barrier to delivering to the media, or to the public by other means, the intended message
concerning the plight of the homeless.
Page 468 U. S. 296
It is also apparent to us that the regulation narrowly focuses on the Government's substantial interest in
maintaining the parks in the heart of our Capital in an attractive and intact condition, readily available to the
millions of people who wish to see and enjoy them by their presence. To permit camping -- using these areas as
living accommodations -- would be totally inimical to these purposes, as would be readily understood by those
who have frequented the National Parks across the country and observed the unfortunate consequences of the
activities of those who refuse to confine their camping to designated areas.
It is urged by respondents, and the Court of Appeals was of this view, that, if the symbolic city of tents was to be
permitted, and if the demonstrators did not intend to cook, dig, or engage in aspects of camping other than
sleeping, the incremental benefit to the parks could not justify the ban on sleeping, which was here an expressive
activity said to enhance the message concerning the plight of the poor and homeless. We cannot agree. In the first
place, we seriously doubt that the First Amendment requires the Park Service to permit a demonstration in
Lafayette Park and the Mall involving a 24-hour vigil and the erection of tents to accommodate 150 people.
Furthermore, although we have assumed for present purposes that the sleeping banned in this case would have an
expressive element, it is evident that its major value to this demonstration would be facilitative. Without a permit
to sleep, it would be difficult to get the poor and homeless to participate or to be present at all. This much is
apparent from the permit application filed by respondents: "Without the incentive of sleeping space or a hot meal,
the homeless would not come to the site." App. 14. The sleeping ban, if enforced, would thus effectively limit the
nature, extent, and duration of the demonstration and to that extent ease the pressure on the parks.
Beyond this, however, it is evident from our cases that the validity of this regulation need not be judged solely by
reference
Page 468 U. S. 297
to the demonstration at hand. Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. at 452 U.
S. 652-653. Absent the prohibition on sleeping, there would be other groups who would demand permission to
deliver an asserted message by camping in Lafayette Park. Some of them would surely have as credible a claim in
this regard as does CCNV, and the denial of permits to still others would present difficult problems for the Park
Service. With the prohibition, however, as is evident in the case before us, at least some around-the-clock
demonstrations lasting for days on end will not materialize, others will be limited in size and duration, and the
purposes of the regulation will thus be materially served. Perhaps these purposes would be more effectively and
not so clumsily achieved by preventing tents and 24-hour vigils entirely in the core areas. But the Park Service's
decision to permit nonsleeping demonstrations does not, in our view, impugn the camping prohibition as a
valuable, but perhaps imperfect, protection to the parks. If the Government has a legitimate interest in ensuring
that the National Parks are adequately protected, which we think it has, and if the parks would be more exposed to
harm without the sleeping prohibition than with it, the ban is safe from invalidation under the First Amendment as
a reasonable regulation of the manner in which a demonstration may be carried out. As inCity Council of Los
Angeles v. Taxpayers for Vincent, the regulation "responds precisely to the substantive problems which
legitimately concern the [Government]." 466 U.S. at466 U. S. 810.
We have difficulty, therefore, in understanding why the prohibition against camping, with its ban on sleeping
overnight, is not a reasonable time, place, or manner regulation that withstands constitutional scrutiny. Surely the
regulation is not unconstitutional on its face. None of its provisions appears unrelated to the ends that it was
designed to serve. Nor is it any less valid when applied to prevent camping in Memorial-core parks by those who
wish to demonstrate
Page 468 U. S. 298
and deliver a message to the public and the central Government. Damage to the parks, as well as their partial
inaccessibility to other members of the public, can as easily result from camping by demonstrators as by
nondemonstrators. In neither case must the Government tolerate it. All those who would resort to the parks must
abide by otherwise valid rules for their use, just as they must observe the traffic laws, sanitation regulations, and
laws to preserve the public peace. This is no more than a reaffirmation that reasonable time, place, or manner
restrictions on expression are constitutionally acceptable.
Contrary to the conclusion of the Court of Appeals, the foregoing analysis demonstrates that the Park Service
regulation is sustainable under the four-factor standard of United States v. O'Brien, 391 U. S. 367 (1968), for
168
validating a regulation of expressive conduct, which, in the last analysis is little, if any, different from the standard
applied to time, place, or manner restrictions. No one contends that, aside
Page 468 U. S. 299
from its impact on speech a rule against camping or overnight sleeping in public parks is beyond the constitutional
power of the Government to enforce. And for the reasons we have discussed above, there is a substantial
Government interest in conserving park property, an interest that is plainly served by, and requires for its
implementation, measures such as the proscription of sleeping that are designed to limit the wear and tear on park
properties. That interest is unrelated to suppression of expression.
We are unmoved by the Court of Appeals' view that the challenged regulation is unnecessary, and hence invalid,
because there are less speech-restrictive alternatives that could have satisfied the Government interest in
preserving park lands. There is no gainsaying that preventing overnight sleeping will avoid a measure of actual or
threatened damage to Lafayette Park and the Mall. The Court of Appeals' suggestions that the Park Service
minimize the possible injury by reducing the size, duration, or frequency of demonstrations would still curtail the
total allowable expression in which demonstrators could engage, whether by sleeping or otherwise, and these
suggestions represent no more than a disagreement with the Park Service over how much protection the core parks
require or how an acceptable level of preservation is to be attained. We do not believe, however, that either United
States v. O'Brien or the time, place, or manner decisions assign to the judiciary the authority to replace the Park
Service as the manager of the Nation's parks or endow the judiciary with the competence to judge how much
protection of park lands is wise and how that level of conservation is to be attained.
Accordingly, the judgment of the Court of Appeals is Reversed.
169
The Supreme Court of the United States
New Jersey v. T.L.O.
469 U.S. 325 (1985)
JUSTICE WHITE delivered the opinion of the Court.
We granted certiorari in this case to examine the appropriateness of the exclusionary rule as a remedy for searches
carried out in violation of the Fourth Amendment by public school authorities. Our consideration of the proper
application of the Fourth Amendment to the public schools, however, has led us to conclude that the search that
gave rise to the case now before us did not violate the Fourth Amendment. Accordingly, we here address only the
questions of the proper standard for assessing the legality of searches conducted by public school officials and the
application of that standard to the facts of this case.
I
On March 7, 1980, a teacher at Piscataway High School in Middlesex County, N.J. discovered two girls smoking
in a lavatory. One of the two girls was the respondent T.L.O, who at that time was a 14-year-old high school
freshman. Because smoking in the lavatory was a violation of a school rule, the teacher took the two girls to the
Principal's office, where they met with Assistant Vice Principal Theodore Choplick. In response to questioning by
Mr. Choplick, T.L.O's companion admitted that she had violated the rule. T.L.O, however, denied that she had
been smoking in the lavatory and claimed that she did not smoke at all.
Mr. Choplick asked T.L.O to come into his private office and demanded to see her purse. Opening the purse, he
found a pack of cigarettes, which he removed from the purse and held before T.L.O as he accused her of having
lied to him. As he reached into the purse for the cigarettes, Mr. Choplick also noticed a package of cigarette rolling
papers. In his experience, possession of rolling papers by high school students was closely associated with the use
of marihuana. Suspecting that a closer examination of the purse might yield further evidence of drug use, Mr.
Choplick proceeded to search the purse thoroughly. The search revealed a small amount of marihuana, a pipe, a
number of empty plastic bags, a substantial quantity of money in one-dollar bills, an index card that appeared to be
a list of students who owed T.L.O money, and two letters that implicated T.L.O in marihuana dealing.
Mr. Choplick notified T.L.O's mother and the police, and turned the evidence of drug dealing over to the police. At
Page 469 U. S. 329
the request of the police, T.L.O's mother took her daughter to police headquarters, where T.L.O confessed that she
had been selling marihuana at the high school. On the basis of the confession and the evidence seized by Mr.
Choplick, the State brought delinquency charges against T.L.O in the Juvenile and Domestic Relations Court of
Middlesex County. [ 1] Contending that Mr. Choplick's search of her purse violated the Fourth Amendment, T.L.O
moved to suppress the evidence found in her purse as well as her confession, which, she argued, was tainted by the
allegedly unlawful search. The Juvenile Court denied the motion to suppress. State ex rel. T.L.O.,178 N.J.Super.
329, 428 A.2d 1327 (1980). Although the court concluded that the Fourth Amendment did apply to searches
carried out by school officials, it held that
"a school official may properly conduct a search of a student's person if the official has a reasonable suspicion that
a crime has been or is in the process of being committed, orreasonable cause to believe that the search is necessary
to maintain school discipline or enforce school policies."
Id. at 341, 428 A.2d at 1333 (emphasis in original).
Applying this standard, the court concluded that the search conducted by Mr. Choplick was a reasonable one. The
initial decision to open the purse was justified by Mr. Choplick's well-founded suspicion that T.L.O had violated
the rule forbidding smoking in the lavatory. Once the purse
Page 469 U. S. 330
was open, evidence of marihuana violations was in plain view, and Mr. Choplick was entitled to conduct a
thorough search to determine the nature and extent of T.L.O's drug-related activities. Id. at 343, 428 A.2d at 1334.
Having denied the motion to suppress, the court on March 23, 1981, found T.L.O. to be a delinquent and on
January 8, 1982, sentenced her to a year's probation.
On appeal from the final judgment of the Juvenile Court, a divided Appellate Division affirmed the trial court's
finding that there had been no Fourth Amendment violation, but vacated the adjudication of delinquency and
remanded for a determination whether T.L.O. had knowingly and voluntarily waived her Fifth Amendment rights
before confessing. State ex rel. T.L.O., 185 N.J.Super. 279, 448 A.2d 493 (1982). T.L.O. appealed the Fourth
170
Amendment ruling, and the Supreme Court of New Jersey reversed the judgment of the Appellate Division and
ordered the suppression of the evidence found in T.L.O.'s purse. State ex rel. T.L.O., 94 N.J. 331, 463 A.2d 934
(1983).
The New Jersey Supreme Court agreed with the lower courts that the Fourth Amendment applies to searches
conducted by school officials. The court also rejected the State of New Jersey's argument that the exclusionary rule
should not be employed to prevent the use in juvenile proceedings of evidence unlawfully seized by school
officials. Declining to consider whether applying the rule to the fruits of searches by school officials would have
any deterrent value, the court held simply that the precedents of this Court establish that "if an official search
violates constitutional rights, the evidence is not admissible in criminal proceedings." Id. at 341, 463 A.2d at 939
(footnote omitted).
With respect to the question of the legality of the search before it, the court agreed with the Juvenile Court that a
warrantless search by a school official does not violate the Fourth Amendment so long as the official
"has reasonable grounds to believe that a student possesses evidence of illegal
Page 469 U. S. 331
activity or activity that would interfere with school discipline and order."
Id. at 346, 463 A.2d at 941-942. However, the court, with two justices dissenting, sharply disagreed with the
Juvenile Court's conclusion that the search of the purse was reasonable. According to the majority, the contents of
T.L.O.'s purse had no bearing on the accusation against T.L.O., for possession of cigarettes (as opposed to
smoking them in the lavatory) did not violate school rules, and a mere desire for evidence that would impeach
T.L.O.'s claim that she did not smoke cigarettes could not justify the search. Moreover, even if a reasonable
suspicion that T.L.O. had cigarettes in her purse would justify a search, Mr. Choplick had no such suspicion, as no
one had furnished him with any specific information that there were cigarettes in the purse. Finally, leaving aside
the question whether Mr. Choplick was justified in opening the purse, the court held that the evidence of drug use
that he saw inside did not justify the extensive "rummaging" through T.L.O.'s papers and effects that
followed. Id. at 347, 463 A.2d at 942-943.
We granted the State of New Jersey's petition for certiorari. 464 U.S. 991 (1983). Although the State had argued in
the Supreme Court of New Jersey that the search of T.L.O.'s purse did not violate the Fourth Amendment, the
petition for certiorari raised only the question whether the exclusionary rule should operate to bar consideration in
juvenile delinquency proceedings of evidence unlawfully seized by a school official without the involvement of
law enforcement officers. When this case was first argued last Term, the State conceded for the purpose of
argument that the standard devised by the New Jersey Supreme Court for determining the legality of school
searches was appropriate and that the court had correctly applied that standard; the State contended only that the
remedial purposes of the exclusionary rule were not well served by applying it to searches conducted by public
authorities not primarily engaged in law enforcement.
Page 469 U. S. 332
Although we originally granted certiorari to decide the issue of the appropriate remedy in juvenile court
proceedings for unlawful school searches, our doubts regarding the wisdom of deciding that question in isolation
from the broader question of what limits, if any, the Fourth Amendment places on the activities of school
authorities prompted us to order reargument on that question. [ 2] Having heard argument on
Page 469 U. S. 333
the legality of the search of T.L.O.'s purse, we are satisfied that the search did not violate the Fourth Amendment. [
3]
II
In determining whether the search at issue in this case violated the Fourth Amendment, we are faced initially with
the question whether that Amendment's prohibition on unreasonable searches and seizures applies to searches
conducted by public school officials. We hold that it does.
Page 469 U. S. 334
It is now beyond dispute that
"the Federal Constitution, by virtue of the Fourteenth Amendment, prohibits unreasonable searches and seizures
by state officers."
171
Elkins v. United States, 364 U. S. 206, 364 U. S. 213 (1960); accord, Mapp v. Ohio,367 U. S. 643 (1961); Wolf v.
Colorado, 338 U. S. 25 (1949). Equally indisputable is the proposition that the Fourteenth Amendment protects
the rights of students against encroachment by public school officials:
"The Fourteenth Amendment, as now applied to the States, protects the citizen against the State itself and all of its
creatures -- Boards of Education not excepted. These have, of course, important, delicate, and highly discretionary
functions, but none that they may not perform within the limits of the Bill of Rights. That they are educating the
young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not
to strangle the free mind at its source and teach youth to discount important principles of our government as mere
platitudes."
West Virginia State Bd. of Ed. v. Barnette, 319 U. S. 624, 319 U. S. 637 (1943).
These two propositions -- that the Fourth Amendment applies to the States through the Fourteenth Amendment,
and that the actions of public school officials are subject to the limits placed on state action by the Fourteenth
Amendment -- might appear sufficient to answer the suggestion that the Fourth Amendment does not proscribe
unreasonable searches by school officials. On reargument, however, the State of New Jersey has argued that the
history of the Fourth Amendment indicates that the Amendment was intended to regulate only searches and
seizures carried out by law enforcement officers; accordingly, although public school officials are concededly state
agents for purposes of the Fourteenth Amendment, the Fourth Amendment creates no rights enforceable against
them. [ 4]
Page 469 U. S. 335
It may well be true that the evil toward which the Fourth Amendment was primarily directed was the resurrection
of the pre-Revolutionary practice of using general warrants or "writs of assistance" to authorize searches for
contraband by officers of the Crown. See United States v. Chadwick, 433 U. S. 1, 433 U. S. 7-8 (1977); Boyd v.
United States, 116 U. S. 616, 116 U. S. 624-629 (1886). But this Court has never limited the Amendment's
prohibition on unreasonable searches and seizures to operations conducted by the police. Rather, the Court has
long spoken of the Fourth Amendment's strictures as restraints imposed upon "governmental action" -- that is,
"upon the activities of sovereign authority." Burdeau v. McDowell, 256 U. S. 465, 256 U. S. 475 (1921).
Accordingly, we have held the Fourth Amendment applicable to the activities of civil as well as criminal
authorities: building inspectors, see Camara v. Municipal Court, 387 U. S. 523, 387 U. S. 528 (1967),
Occupational Safety and Health Act inspectors, see Marshall v. Barlow's, Inc., 436 U. S. 307, 436 U. S. 312-313
(1978), and even firemen entering privately owned premises to battle a fire, see Michigan v. Tyler, 436 U. S.
499, 436 U. S. 506 (1978), are all subject to the restraints imposed by the Fourth Amendment. As we observed
in Camara v. Municipal Court, supra,
"[t]he basic purpose of this Amendment, as recognized in countless decisions of this Court, is to safeguard the
privacy and security of individuals against arbitrary invasions by governmental officials."
387 U.S. at 387 U. S. 528. Because the individual's interest in privacy and personal security "suffers whether the
government's motivation is to investigate violations of criminal laws or breaches of other statutory or regulatory
standards," Marshall v. Barlow's, Inc., supra, at 436 U. S. 312-313, it would be "anomalous to say that the
individual and his private property are fully protected by the Fourth Amendment only when the individual is
suspected of criminal behavior." Camara v. Municipal Court, supra, at 387 U. S. 530.
Page 469 U. S. 336
Notwithstanding the general applicability of the Fourth Amendment to the activities of civil authorities, a few
courts have concluded that school officials are exempt from the dictates of the Fourth Amendment by virtue of the
special nature of their authority over schoolchildren. See, e.g., R.C.M. v. State, 660 S.W.2d 552 (Tex.App.1983).
Teachers and school administrators, it is said, act in loco parentis in their dealings with students: their authority is
that of the parent, not the State, and is therefore not subject to the limits of the Fourth Amendment. Ibid.
Such reasoning is in tension with contemporary reality and the teachings of this Court. We have held school
officials subject to the commands of the First Amendment, see Tinker v. Des Moines Independent Community
School District, 393 U. S. 503 (1969), and the Due Process Clause of the Fourteenth Amendment, see Goss v.
Lopez, 419 U. S. 565 (1975). If school authorities are state actors for purposes of the constitutional guarantees of
freedom of expression and due process, it is difficult to understand why they should be deemed to be exercising
parental rather than public authority when conducting searches of their students. More generally, the Court has
recognized that "the concept of parental delegation" as a source of school authority is not entirely "consonant with
compulsory education laws." Ingraham v. Wright, 430 U. S. 651, 430 U. S. 662 (1977). Today's public school
officials do not merely exercise authority voluntarily conferred on them by individual parents; rather, they act in
furtherance of publicly mandated educational and disciplinary policies. See, e.g., the opinion in State ex rel.
172
T.L.O., 94 N.J. at 343, 463 A.2d at 934, 940, describing the New Jersey statutes regulating school disciplinary
policies and establishing the authority of school officials over their students. In carrying out searches and other
disciplinary functions pursuant to such policies, school officials act as representatives of the State, not merely as
surrogates for the parents, and they
Page 469 U. S. 337
cannot claim the parents' immunity from the strictures of the Fourth Amendment.
III
To hold that the Fourth Amendment applies to searches conducted by school authorities is only to begin the
inquiry into the standards governing such searches. Although the underlying command of the Fourth Amendment
is always that searches and seizures be reasonable, what is reasonable depends on the context within which a
search takes place. The determination of the standard of reasonableness governing any specific class of searches
requires "balancing the need to search against the invasion which the search entails." Camara v. Municipal Court,
supra, at 387 U. S. 536-537. On one side of the balance are arrayed the individual's legitimate expectations of
privacy and personal security; on the other, the government's need for effective methods to deal with breaches of
public order.
We have recognized that even a limited search of the person is a substantial invasion of privacy. Terry v.
Ohio, 392 U. S. 1, 392 U. S. 24-25 (1967). We have also recognized that searches of closed items of personal
luggage are intrusions on protected privacy interests, for "the Fourth Amendment provides protection to the owner
of every container that conceals its contents from plain view." United States v. Ross, 456 U. S. 798, 456 U. S. 822823 (1982). A search of a child's person or of a closed purse or other bag carried on her person, [ 5] no less
Page 469 U. S. 338
than a similar search carried out on an adult, is undoubtedly a severe violation of subjective expectations of
privacy.
Of course, the Fourth Amendment does not protect subjective expectations of privacy that are unreasonable or
otherwise "illegitimate." See, e.g., Hudson v. Palmer, 468 U. S. 517 (1984); Rawlings v. Kentucky, 448 U. S.
98 (1980). To receive the protection of the Fourth Amendment, an expectation of privacy must be one that society
is "prepared to recognize as legitimate." Hudson v. Palmer, supra, at 468 U. S. 526. The State of New Jersey has
argued that, because of the pervasive supervision to which children in the schools are necessarily subject, a child
has virtually no legitimate expectation of privacy in articles of personal property "unnecessarily" carried into a
school. This argument has two factual premises: (1) the fundamental incompatibility of expectations of privacy
with the maintenance of a sound educational environment; and (2) the minimal interest of the child in bringing any
items of personal property into the school. Both premises are severely flawed.
Although this Court may take notice of the difficulty of maintaining discipline in the public schools today, the
situation is not so dire that students in the schools may claim no legitimate expectations of privacy. We have
recently recognized that the need to maintain order in a prison is such that prisoners retain no legitimate
expectations of privacy in their cells, but it goes almost without saying that "[t]he prisoner and the schoolchild
stand in wholly different circumstances, separated by the harsh facts of criminal conviction and
incarceration." Ingraham v. Wright, supra, at 430 U. S. 669. We are not
Page 469 U. S. 339
yet ready to hold that the schools and the prisons need be equated for purposes of the Fourth Amendment.
Nor does the State's suggestion that children have no legitimate need to bring personal property into the schools
seem well anchored in reality. Students at a minimum must bring to school not only the supplies needed for their
studies, but also keys, money, and the necessaries of personal hygiene and grooming. In addition, students may
carry on their persons or in purses or wallets such nondisruptive yet highly personal items as photographs, letters,
and diaries. Finally, students may have perfectly legitimate reasons to carry with them articles of property needed
in connection with extracurricular or recreational activities. In short, schoolchildren may find it necessary to carry
with them a variety of legitimate, noncontraband items, and there is no reason to conclude that they have
necessarily waived all rights to privacy in such items merely by bringing them onto school grounds.
Against the child's interest in privacy must be set the substantial interest of teachers and administrators in
maintaining discipline in the classroom and on school grounds. Maintaining order in the classroom has never been
easy, but in recent years, school disorder has often taken particularly ugly forms: drug use and violent crime in the
schools have become major social problems. See generally 1 NIE, U.S. Dept. of Health, Education and Welfare,
Violent Schools -- Safe Schools: The Safe School Study Report to the Congress (1978). Even in schools that have
173
been spared the most severe disciplinary problems, the preservation of order and a proper educational environment
requires close supervision of schoolchildren, as well as the enforcement of rules against conduct that would be
perfectly permissible if undertaken by an adult. "Events calling for discipline are frequent occurrences and
sometimes require immediate, effective action."Goss v. Lopez, 419 U.S. at 419 U. S. 580. Accordingly, we have
recognized
Page 469 U. S. 340
that maintaining security and order in the schools requires a certain degree of flexibility in school disciplinary
procedures, and we have respected the value of preserving the informality of the student-teacher relationship. See
id. at 419 U. S. 582-583; Ingraham v. Wright, 430 U.S. at 430 U. S. 680-682.
How, then, should we strike the balance between the schoolchild's legitimate expectations of privacy and the
school's equally legitimate need to maintain an environment in which learning can take place? It is evident that the
school setting requires some easing of the restrictions to which searches by public authorities are ordinarily
subject. The warrant requirement, in particular, is unsuited to the school environment: requiring a teacher to obtain
a warrant before searching a child suspected of an infraction of school rules (or of the criminal law) would unduly
interfere with the maintenance of the swift and informal disciplinary procedures needed in the schools. Just as we
have in other cases dispensed with the warrant requirement when "the burden of obtaining a warrant is likely to
frustrate the governmental purpose behind the search," Camara v. Municipal Court, 387 U.S. at 387 U. S. 532533, we hold today that school officials need not obtain a warrant before searching a student who is under their
authority.
The school setting also requires some modification of the level of suspicion of illicit activity needed to justify a
search. Ordinarily, a search -- even one that may permissibly be carried out without a warrant -- must be based
upon "probable cause" to believe that a violation of the law has occurred. See, e.g., Almeida-Sanchez v. United
States,413 U. S. 266, 413 U. S. 273 (1973); Sibron v. New York, 392 U. S. 40, 392 U. S. 62-66 (1968). However,
"probable cause" is not an irreducible requirement of a valid search. The fundamental command of the Fourth
Amendment is that searches and seizures be reasonable, and although
"both the concept of probable cause and the requirement of a warrant bear on the reasonableness of a search, . . . in
certain limited circumstances neither is required."
Almeida-Sanchez v. United States, supra, at 413 U. S. 277 (POWELL,
Page 469 U. S. 341
J., concurring). Thus, we have in a number of cases recognized the legality of searches and seizures based on
suspicions that, although "reasonable," do not rise to the level of probable cause. See, e.g., Terry v. Ohio, 392 U. S.
1 (1968); United States v. Brignoni-Ponce, 422 U. S. 873, 422 U. S. 881 (195); Delaware v. Prouse, 440 U. S.
648, 440 U. S. 654-655 (1979); United States v. Martinez-Fuerte, 428 U. S. 543(1976); cf. Camara v. Municipal
Court, supra, at 387 U. S. 534-539. Where a careful balancing of governmental and private interests suggests that
the public interest is best served by a Fourth Amendment standard of reasonableness that stops short of probable
cause, we have not hesitated to adopt such a standard.
We join the majority of courts that have examined this issue [ 6] in concluding that the accommodation of the
privacy interests of schoolchildren with the substantial need of teachers and administrators for freedom to maintain
order in the schools does not require strict adherence to the requirement that searches be based on probable cause
to believe that the subject of the search has violated or is violating the law. Rather, the legality of a search of a
student should depend simply on the reasonableness, under all the circumstances, of the search. Determining the
reasonableness of any search involves a twofold inquiry: first, one must consider "whether the . . . action was
justified at its inception," Terry v. Ohio, 392 U.S. at 392 U. S. 20; second, one must determine whether the search
as actually conducted "was reasonably related in scope to the circumstances which justified the interference in the
first place," ibid. Under ordinary circumstances, a search of a student by a teacher or other school official [ 7] will
be
Page 469 U. S. 342
"justified at its inception" when there are reasonable grounds for suspecting that the search will turn up evidence
that the student has violated or is violating either the law or the rules of the school. [ 8] Such a search will be
permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not
excessively intrusive in light of the age and sex of the student and the nature of the infraction. [ 9]
This standard will, we trust, neither unduly burden the efforts of school authorities to maintain order in their
schools
174
Page 469 U. S. 343
nor authorize unrestrained intrusions upon the privacy of schoolchildren. By focusing attention on the question of
reasonableness, the standard will spare teachers and school administrators the necessity of schooling themselves in
the niceties of probable cause and permit them to regulate their conduct according to the dictates of reason and
common sense. At the same time, the reasonableness standard should ensure that the interests of students will be
invaded no more than is necessary to achieve the legitimate end of preserving order in the schools.
IV
There remains the question of the legality of the search in this case. We recognize that the "reasonable grounds"
standard applied by the New Jersey Supreme Court in its consideration of this question is not substantially
different from the standard that we have adopted today. Nonetheless, we believe that the New Jersey court's
application of that standard to strike down the search of T.L.O.'s purse reflects a somewhat crabbed notion of
reasonableness. Our review of the facts surrounding the search leads us to conclude that the search was in no sense
unreasonable for Fourth Amendment purposes. [ 10]
The incident that gave rise to this case actually involved two separate searches, with the first -- the search for
cigarettes -- providing the suspicion that gave rise to the second
Page 469 U. S. 344
-- the search for marihuana. Although it is the fruits of the second search that are at issue here, the validity of the
search for marihuana must depend on the reasonableness of the initial search for cigarettes, as there would have
been no reason to suspect that T.L.O. possessed marihuana had the first search not taken place. Accordingly, it is
to the search for cigarettes that we first turn our attention.
The New Jersey Supreme Court pointed to two grounds for its holding that the search for cigarettes was
unreasonable. First, the court observed that possession of cigarettes was not in itself illegal or a violation of school
rules. Because the contents of T.L.O.'s purse would therefore have "no direct bearing on the infraction" of which
she was accused (smoking in a lavatory where smoking was prohibited), there was no reason to search her purse. [
11] Second, even assuming that a search of T.L.O.'s purse might under some circumstances be reasonable in light
of the accusation made against T.L.O., the New Jersey court concluded that Mr. Choplick in this particular case
had no reasonable grounds to suspect that T.L.O. had cigarettes in her purse. At best, according
Page 469 U. S. 345
to the court, Mr. Choplick had "a good hunch." 94 N.J. at 347, 463 A.2d at 942.
Both these conclusions are implausible. T.L.O. had been accused of smoking, and had denied the accusation in the
strongest possible terms when she stated that she did not smoke at all. Surely it cannot be said that under these
circumstances, T.L.O.'s possession of cigarettes would be irrelevant to the charges against her or to her response to
those charges. T.L.O.'s possession of cigarettes, once it was discovered, would both corroborate the report that she
had been smoking and undermine the credibility of her defense to the charge of smoking. To be sure, the discovery
of the cigarettes would not prove that T.L.O. had been smoking in the lavatory; nor would it, strictly speaking,
necessarily be inconsistent with her claim that she did not smoke at all. But it is universally recognized that
evidence, to be relevant to an inquiry, need not conclusively prove the ultimate fact in issue, but only have
"any tendency to make the existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence."
Fed.Rule Evid. 401. The relevance of T.L.O.'s possession of cigarettes to the question whether she had been
smoking and to the credibility of her denial that she smoked supplied the necessary "nexus" between the item
searched for and the infraction under investigation. See Warden v. Hayden, 387 U. S. 294, 387 U. S. 306-307
(1967). Thus, if Mr. Choplick in fact had a reasonable suspicion that T.L.O. had cigarettes in her purse, the search
was justified despite the fact that the cigarettes, if found, would constitute "mere evidence" of a violation. Ibid.
Of course, the New Jersey Supreme Court also held that Mr. Choplick had no reasonable suspicion that the purse
would contain cigarettes. This conclusion is puzzling. A teacher had reported that T.L.O. was smoking in the
lavatory. Certainly this report gave Mr. Choplick reason to suspect that T.L.O. was carrying cigarettes with her;
and
Page 469 U. S. 346
if she did have cigarettes, her purse was the obvious place in which to find them. Mr. Choplick's suspicion that
there were cigarettes in the purse was not an "inchoate and unparticularized suspicion or hunch,'" Terry v.
Ohio, 392 U.S. at 392 U. S. 27; rather, it was the sort of "common-sense conclusio[n] about human behavior"
175
upon which "practical people" -- including government officials -- are entitled to rely. United States v. Cortez, 449
U. S. 411, 449 U. S. 418 (1981). Of course, even if the teacher's report were true, T.L.O. might not have had a
pack of cigarettes with her; she might have borrowed a cigarette from someone else or have been sharing a
cigarette with another student. But the requirement of reasonable suspicion is not a requirement of absolute
certainty: "sufficient probability, not certainty, is the touchstone of reasonableness under the Fourth Amendment. .
. ." Hill v. California, 401 U. S. 797, 401 U. S. 804(1971). Because the hypothesis that T.L.O. was carrying
cigarettes in her purse was itself not unreasonable, it is irrelevant that other hypotheses were also consistent with
the teacher's accusation. Accordingly, it cannot be said that Mr. Choplick acted unreasonably when he examined
T.L.O.'s purse to see if it contained cigarettes. [ 12]
Page 469 U. S. 347
Our conclusion that Mr. Choplick's decision to open T.L.O.'s purse was reasonable brings us to the question of the
further search for marihuana once the pack of cigarettes was located. The suspicion upon which the search for
marihuana was founded was provided when Mr. Choplick observed a package of rolling papers in the purse as he
removed the pack of cigarettes. Although T.L.O. does not dispute the reasonableness of Mr. Choplick's belief that
the rolling papers indicated the presence of marihuana, she does contend that the scope of the search Mr. Choplick
conducted exceeded permissible bounds when he seized and read certain letters that implicated T.L.O. in drug
dealing. This argument, too, is unpersuasive. The discovery of the rolling papers concededly gave rise to a
reasonable suspicion that T.L.O. was carrying marihuana as well as cigarettes in her purse. This suspicion justified
further exploration of T.L.O.'s purse, which turned up more evidence of drug-related activities: a pipe, a number of
plastic bags of the type commonly used to store marihuana, a small quantity of marihuana, and a fairly substantial
amount of money. Under these circumstances, it was not unreasonable to extend the search to a separate zippered
compartment of the purse; and when a search of that compartment revealed an index card containing a list of
"people who owe me money" as well as two letters, the inference that T.L.O. was involved in marihuana
trafficking was substantial enough to justify Mr. Choplick in examining the letters to determine whether they
contained any further evidence. In short, we cannot conclude that the search for marihuana was unreasonable in
any respect.
Because the search resulting in the discovery of the evidence of marihuana dealing by T.L.O. was reasonable, the
New Jersey Supreme Court's decision to exclude that evidence
Page 469 U. S. 348
from T.L.O.'s juvenile delinquency proceedings on Fourth Amendment grounds was erroneous. Accordingly, the
judgment of the Supreme Court of New Jersey is Reversed.
176
The Supreme Court of the United States
Tinker v. Des Moines School District
393 U.S. 503 (1969)
MR. JUSTICE FORTAS delivered the opinion of the Court.
Petitioner John F. Tinker, 15 years old, and petitioner Christopher Eckhardt, 16 years old, attended high schools in
Des Moines, Iowa. Petitioner Mary Beth Tinker, John's sister, was a 13-year-old student in junior high school.
In December, 1965, a group of adults and students in Des Moines held a meeting at the Eckhardt home. The group
determined to publicize their objections to the hostilities in Vietnam and their support for a truce by wearing black
armbands during the holiday season and by fasting on December 16 and New Year's Eve. Petitioners and their
parents had previously engaged in similar activities, and they decided to participate in the program.
The principals of the Des Moines schools became aware of the plan to wear armbands. On December 14, 1965,
they met and adopted a policy that any student wearing an armband to school would be asked to remove it, and, if
he refused, he would be suspended until he returned without the armband. Petitioners were aware of the regulation
that the school authorities adopted.
On December 16, Mary Beth and Christopher wore black armbands to their schools. John Tinker wore his
armband the next day. They were all sent home and suspended from school until they would come back without
their armbands. They did not return to school until after the planned period for wearing armbands had expired -that is, until after New Year's Day.
This complaint was filed in the United States District Court by petitioners, through their fathers, under § 1983 of
Title 42 of the United States Code. It prayed for an injunction restraining the respondent school officials and the
respondent members of the board of directors of the school district from disciplining the petitioners, and it sought
nominal damages. After an evidentiary hearing, the District Court dismissed the complaint. It upheld
Page 393 U. S. 505
the constitutionality of the school authorities' action on the ground that it was reasonable in order to prevent
disturbance of school discipline. 258 F.Supp. 971 (1966). The court referred to, but expressly declined to follow,
the Fifth Circuit's holding in a similar case that the wearing of symbols like the armbands cannot be prohibited
unless it "materially and substantially interfere[s] with the requirements of appropriate discipline in the operation
of the school." Burnside v. Byars, 363 F.2d 744, 749 (1966). [ 1]
On appeal, the Court of Appeals for the Eighth Circuit considered the case en banc. The court was equally divided,
and the District Court's decision was accordingly affirmed without opinion. 383 F.2d 988 (1967). We granted
certiorari. 390 U.S. 942 (1968).
I
The District Court recognized that the wearing of an armband for the purpose of expressing certain views is the
type of symbolic act that is within the Free Speech Clause of the First Amendment. See West Virginia v.
Barnette, 319 U. S. 624 (1943);Stromberg v. California, 283 U. S. 359 (1931). Cf. Thornhill v. Alabama, 310 U. S.
88(1940); Edwards v. South Carolina, 372 U. S. 229 (1963); Brown v. Louisiana, 383 U. S. 131 (1966). As we
shall discuss, the wearing of armbands in the circumstances of this case was entirely divorced from actually or
potentially disruptive conduct by those participating in it. It was closely akin to "pure speech"
Page 393 U. S. 506
which, we have repeatedly held, is entitled to comprehensive protection under the First Amendment. Cf. Cox v.
Louisiana, 379 U. S. 536, 379 U. S. 555 (1965); Adderley v. Florida, 385 U. S. 39 (1966).
First Amendment rights, applied in light of the special characteristics of the school environment, are available to
teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to
freedom of speech or expression at the schoolhouse gate. This has been the unmistakable holding of this Court for
almost 50 years. In Meyer v. Nebraska, 262 U. S. 390 (1923), and Bartels v. Iowa, 262 U. S. 404 (1923), this
Court, in opinions by Mr. Justice McReynolds, held that the Due Process Clause of the Fourteenth Amendment
prevents States from forbidding the teaching of a foreign language to young students. Statutes to this effect, the
Court held, unconstitutionally interfere with the liberty of teacher, student, and parent. [ 2] See also Pierce v.
Society of Sisters, 268
177
Page 393 U. S. 507
U.S. 510 (1925); West Virginia v. Barnette, 319 U. S. 624 (1943); McCollum v. Board of Education, 333 U. S.
203 (1948); Wieman v. Updegraff, 344 U. S. 183, 344 U. S. 195 (1952) (concurring opinion); Sweezy v. New
Hampshire, 354 U. S. 234 (1957);Shelton v. Tucker, 364 U. S. 479, 364 U. S. 487 (1960); Engel v. Vitale, 370 U.
S. 421(1962); Keyishian v. Board of Regents, 385 U. S. 589, 385 U. S. 603 (1967); Epperson v. Arkansas,
ante, p. 393 U. S. 97 (1968).
In West Virginia v. Barnette, supra, this Court held that, under the First Amendment, the student in public school
may not be compelled to salute the flag. Speaking through Mr. Justice Jackson, the Court said:
"The Fourteenth Amendment, as now applied to the States, protects the citizen against the State itself and all of its
creatures -- Boards of Education not excepted. These have, of course, important, delicate, and highly discretionary
functions, but none that they may not perform within the limits of the Bill of Rights. That they are educating the
young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not
to strangle the free mind at its source and teach youth to discount important principles of our government as mere
platitudes."
319 U.S. at 319 U. S. 637. On the other hand, the Court has repeatedly emphasized the need for affirming the
comprehensive authority of the States and of school officials, consistent with fundamental constitutional
safeguards, to prescribe and control conduct in the schools. See Epperson v. Arkansas, supra, at 393 U. S.
104; Meyer v. Nebraska, supra, at 262 U. S. 402. Our problem lies in the area where students in the exercise of
First Amendment rights collide with the rules of the school authorities.
II
The problem posed by the present case does not relate to regulation of the length of skirts or the type of clothing,
Page 393 U. S. 508
to hair style, or deportment. Cf. Ferrell v. Dallas Independent School District, 392 F.2d 697 (1968); Pugsley v.
Sellmeyer, 158 Ark. 247, 250 S.W. 538 (1923). It does not concern aggressive, disruptive action or even group
demonstrations. Our problem involves direct, primary First Amendment rights akin to "pure speech."
The school officials banned and sought to punish petitioners for a silent, passive expression of opinion,
unaccompanied by any disorder or disturbance on the part of petitioners. There is here no evidence whatever of
petitioners' interference, actual or nascent, with the schools' work or of collision with the rights of other students to
be secure and to be let alone. Accordingly, this case does not concern speech or action that intrudes upon the work
of the schools or the rights of other students.
Only a few of the 18,000 students in the school system wore the black armbands. Only five students were
suspended for wearing them. There is no indication that the work of the schools or any class was disrupted.
Outside the classrooms, a few students made hostile remarks to the children wearing armbands, but there were no
threats or acts of violence on school premises.
The District Court concluded that the action of the school authorities was reasonable because it was based upon
their fear of a disturbance from the wearing of the armbands. But, in our system, undifferentiated fear or
apprehension of disturbance is not enough to overcome the right to freedom of expression. Any departure from
absolute regimentation may cause trouble. Any variation from the majority's opinion may inspire fear. Any word
spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an
argument or cause a disturbance. But our Constitution says we must take this risk, Terminiello v. Chicago,337 U.
S. 1 (1949); and our history says that it is this sort of hazardous freedom -- this kind of openness -- that is
Page 393 U. S. 509
the basis of our national strength and of the independence and vigor of Americans who grow up and live in this
relatively permissive, often disputatious, society.
In order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it
must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and
unpleasantness that always accompany an unpopular viewpoint. Certainly where there is no finding and no
showing that engaging in the forbidden conduct would "materially and substantially interfere with the
requirements of appropriate discipline in the operation of the school," the prohibition cannot be
sustained. Burnside v. Byars, supra at 749.
In the present case, the District Court made no such finding, and our independent examination of the record fails to
yield evidence that the school authorities had reason to anticipate that the wearing of the armbands would
178
substantially interfere with the work of the school or impinge upon the rights of other students. Even an official
memorandum prepared after the suspension that listed the reasons for the ban on wearing the armbands made no
reference to the anticipation of such disruption. [ 3]
Page 393 U. S. 510
On the contrary, the action of the school authorities appears to have been based upon an urgent wish to avoid the
controversy which might result from the expression, even by the silent symbol of armbands, of opposition to this
Nation's part in the conflagration in Vietnam. [ 4] It is revealing, in this respect, that the meeting at which the
school principals decided to issue the contested regulation was called in response to a student's statement to the
journalism teacher in one of the schools that he wanted to write an article on Vietnam and have it published in the
school paper. (The student was dissuaded. [ 5])
It is also relevant that the school authorities did not purport to prohibit the wearing of all symbols of political or
controversial significance. The record shows that students in some of the schools wore buttons relating to national
political campaigns, and some even wore the Iron Cross, traditionally a symbol of Nazism. The order prohibiting
the wearing of armbands did not extend to these. Instead, a particular symbol -- black armbands worn to exhibit
opposition to this Nation's involvement
Page 393 U. S. 511
in Vietnam -- was singled out for prohibition. Clearly, the prohibition of expression of one particular opinion, at
least without evidence that it is necessary to avoid material and substantial interference with schoolwork or
discipline, is not constitutionally permissible.
In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess
absolute authority over their students. Students in school, as well as out of school, are "persons" under our
Constitution. They are possessed of fundamental rights which the State must respect, just as they themselves must
respect their obligations to the State. In our system, students may not be regarded as closed-circuit recipients of
only that which the State chooses to communicate. They may not be confined to the expression of those sentiments
that are officially approved. In the absence of a specific showing of constitutionally valid reasons to regulate their
speech, students are entitled to freedom of expression of their views. As Judge Gewin, speaking for the Fifth
Circuit, said, school officials cannot suppress "expressions of feelings with which they do not wish to
contend." Burnside v. Byars, supra, at 749.
In Meyer v. Nebraska, supra, at 262 U. S. 402, Mr. Justice McReynolds expressed this Nation's repudiation of the
principle that a State might so conduct its schools as to "foster a homogeneous people." He said:
"In order to submerge the individual and develop ideal citizens, Sparta assembled the males at seven into barracks
and intrusted their subsequent education and training to official guardians. Although such measures have been
deliberately approved by men of great genius, their ideas touching the relation between individual and State were
wholly different from those upon which our institutions rest; and it hardly will be affirmed that any legislature
could impose such restrictions upon the people of a
Page 393 U. S. 512
State without doing violence to both letter and spirit of the Constitution."
This principle has been repeated by this Court on numerous occasions during the intervening years. In Keyishian v.
Board of Regents, 385 U. S. 589, 385 U. S. 603, MR. JUSTICE BRENNAN, speaking for the Court, said:
"'The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American
schools.' Shelton v. Tucker, [364 U.S. 479,] at 364 U. S. 487. The classroom is peculiarly the 'marketplace of
ideas.' The Nation's future depends upon leaders trained through wide exposure to that robust exchange of ideas
which discovers truth 'out of a multitude of tongues, [rather] than through any kind of authoritative selection.'"
The principle of these cases is not confined to the supervised and ordained discussion which takes place in the
classroom. The principal use to which the schools are dedicated is to accommodate students during prescribed
hours for the purpose of certain types of activities. Among those activities is personal intercommunication among
the students. [ 6] This is not only an inevitable part of the process of attending school; it is also an important part
of the educational process. A student's rights, therefore, do not embrace merely the classroom hours. When he is in
the cafeteria, or on the playing field, or on
Page 393 U. S. 513
the campus during the authorized hours, he may express his opinions, even on controversial subjects like the
conflict in Vietnam, if he does so without "materially and substantially interfer[ing] with the requirements of
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appropriate discipline in the operation of the school" and without colliding with the rights of others. Burnside v.
Byars, supra, at 749. But conduct by the student, in class or out of it, which for any reason -- whether it stems
from time, place, or type of behavior -- materially disrupts classwork or involves substantial disorder or invasion
of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech. Cf.
Blackwell v. Issaquena County Board of Education., 363 F.2d 740 (C.A. 5th Cir.1966).
Under our Constitution, free speech is not a right that is given only to be so circumscribed that it exists in
principle, but not in fact. Freedom of expression would not truly exist if the right could be exercised only in an
area that a benevolent government has provided as a safe haven for crackpots. The Constitution says that Congress
(and the States) may not abridge the right to free speech. This provision means what it says. We properly read it to
permit reasonable regulation of speech-connected activities in carefully restricted circumstances. But we do not
confine the permissible exercise of First Amendment rights to a telephone booth or the four corners of a pamphlet,
or to supervised and ordained discussion in a school classroom.
If a regulation were adopted by school officials forbidding discussion of the Vietnam conflict, or the expression by
any student of opposition to it anywhere on school property except as part of a prescribed classroom exercise, it
would be obvious that the regulation would violate the constitutional rights of students, at least if it could not be
justified by a showing that the students' activities would materially and substantially disrupt the work and
discipline of the school. Cf. Hammond
Page 393 U. S. 514
v. South Carolina State College, 272 F.Supp. 947 (D.C.S.C.1967) (orderly protest meeting on state college
campus); Dickey v. Alabama State Board of Education, 273 F.Supp. 613 (D.C.M.D. Ala. 967) (expulsion of
student editor of college newspaper). In the circumstances of the present case, the prohibition of the silent, passive
"witness of the armbands," as one of the children called it, is no less offensive to the Constitution's guarantees.
As we have discussed, the record does not demonstrate any facts which might reasonably have led school
authorities to forecast substantial disruption of or material interference with school activities, and no disturbances
or disorders on the school premises in fact occurred. These petitioners merely went about their ordained rounds in
school. Their deviation consisted only in wearing on their sleeve a band of black cloth, not more than two inches
wide. They wore it to exhibit their disapproval of the Vietnam hostilities and their advocacy of a truce, to make
their views known, and, by their example, to influence others to adopt them. They neither interrupted school
activities nor sought to intrude in the school affairs or the lives of others. They caused discussion outside of the
classrooms, but no interference with work and no disorder. In the circumstances, our Constitution does not permit
officials of the State to deny their form of expression.
We express no opinion as to the form of relief which should be granted, this being a matter for the lower courts to
determine. We reverse and remand for further proceedings consistent with this opinion.
Reversed and remanded.
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OHIO HIGH SCHOOL MOCK TRIAL TIMEKEEPER
MANUAL
Timekeepers’ Responsibilities
I.
BEFORE THE TRIAL
A. Be sure to have in your Timekeeper’s Packet:
a) 1 Timekeeping Sheet;
b) 1 Time Card Use Sheet;
c) 2 stop watches;
d) 1 set of time cards (teams MUST use the cards provided in the Competition
Manual)
B. Enter the courtroom; take your position (at the end of the jury box closest to the audience, if
possible). Rise when the judge and jury enter the courtroom. Be seated when the judge
grants permission for all to be seated.
II.
DURING THE TRIAL
A. Enter the Trial Number and Team Names in the spaces provided at the top of the
Timekeeping Sheet. Arrange your stopwatches, time cards and Time Card Use Table.
B. Keep time during the trial, remembering the following.
1. Use one stopwatch for each side – PLAINTIFF on your left and DEFENSE on your
right.
2. RESET stopwatch to zero only at the following times:
a)
at the beginning of each side’s opening statement;
b)
at the beginning of each side’s direct examination;
c)
at the beginning of each side’s cross examination; and,
d)
at the beginning of each side’s closing argument.
3. DO NOT reset stopwatch to zero at any other time.
a)
DO NOT reset stopwatch to zero at the end of direct and cross examinations,
since you will need to resume direct examination timing for redirect questioning,
and cross examination time for re-cross questioning;
b)
DO NOT reset stopwatch to zero at the end of the Plaintiff/Prosecution’s closing
argument, since you will need to resume the Plaintiff/Prosecution’s closing
argument timing for the Plaintiff/Prosecution’s rebuttal.
4. START timing only when the actual opening statement/closing argument or questioning
begins (e.g., do not start when an attorney asks to reserve time for rebuttal or when a
witness is sworn).
5. STOP timing during objections, responses to objections, and questioning by the judge.
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6. During the trial if there is more than a 15 second discrepancy between the
Plaintiff/Prosecution and Defense teams’ timekeepers, the procedure outlined below in
Section V will be followed.
C. Display time cards to the attorneys and witnesses at the intervals set out in the Time Card Use
Table. Display the STOP card to the presiding, scoring judges, and teams.
D. At the conclusion of the trial, if either side informs the court that it wishes to file a dispute
and a dispute hearing is granted, please time the additional three-minute argument per side.
III.
IV.
V.
DURING THE RECESS
A.
Add the time used for each side and sign the timekeeping sheet.
B.
Give your timesheet to the presiding judge.
C.
Remind the judges that they have 12 minutes for debriefing and that you will signal when
time for debriefing has expired.
D.
Help teams straighten up the courtroom for the next round.
AFTER THE RECESS
A.
Reset your stopwatch to zero and start time for the debriefing.
B.
Signal the presiding judge when the 12 minutes allowed for debriefing have expired.
DISCREPANCIES IN TIME BETWEEN TEAM TIMEKEEPERS
A.
If a time-keeping discrepancy of more than 15 seconds is discovered between the plaintiff
and defense teams’ timekeepers, the timekeepers should notify the presiding judge as
soon as the discrepancy is discovered. In this event, one of the timekeepers should
stand, wait to be recognized, and say “Your honor, we have a time discrepancy of more
than 15 seconds.”
B.
The presiding judge will rule on any time discrepancy before the trial continues.
Timekeepers will synchronize stop watches to match the presiding judge’s ruling (for
example if Plaintiff stop watch indicates 2 minutes left on a direct examination and the
Defense stop watch indicates time is expired, the presiding judge may decide to split the
difference in the timing variation and give Plaintiff 1 minute to conclude the direct
examination. Defense would adjust timing to allow for the 1 minute timing decision.)
C.
Any discrepancies between timekeepers less than 15 seconds will not be considered a
violation.
D.
Timekeepers may raise time discrepancies of 15 seconds or more as soon as they are
discovered. No time disputes will be entertained after the trial concludes. The decisions
of the presiding judge regarding the resolution of timing disputes are final.
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OHIO HIGH SCHOOL MOCK TRIAL COMPETITION
Timekeeper Instructions
1.
ALL TEAMS are to bring two (2) STOPWATCHES and a trained TIMEKEEPER.
No
stopwatches and no timecards will be available at the competition site. Your timekeeper is to be one of the
official team members listed on your roster. Timekeepers are to be so noted on your team roster in each
round.
2.
TWO STOPWATCHES are needed by each team (one stop watch for keeping time for the
Plaintiff and one stop watch for keeping time for the Defense, regardless of which side your team is
presenting), the Timekeeper's Responsibilities Sheet AND your own "TIME-REMAINING" CARDS. Teams
MUST use the timekeeper cards provided in the Competition Manual. (The timekeeper must be familiar
with the trial sequence chart and have practiced completing the tally sheet before the tournament begins.) In
each trial, the timekeeper will sit in the jury box, if one is available, and keep time for both teams. In all trials,
the official timekeeper will turn in the timing sheet in to the presiding judge.
3.
The official timekeeper will (a) keep accurate time for both teams; (b) show "time-remaining" cards to
both teams; and (c) notify the presiding judge that "TIME" has expired at the end of the trial by showing the
“STOP” card.
If a time-keeping discrepancy of more than 15 seconds is discovered between the plaintiff and defense
teams’ timekeepers, the timekeepers should notify the presiding judge as soon as the discrepancy is
discovered. In this event, one of the timekeepers should stand, wait to be recognized, and say “Your
honor, we have a time discrepancy of more than 15 seconds. The procedure below will then be followed:

The presiding judge will rule on any time discrepancy before the trial continues. Timekeepers
will synchronize stop watches to match the presiding judge’s ruling (for example if Plaintiff
stop watch indicates 2 minutes left on a direct examination and the Defense stop watch
indicates time is expired, the presiding judge might decide to split the difference in the timing
variation and give Plaintiff 1 minute to conclude the direct examination. Defense would
adjust timing to allow for the 1 minute timing decision.)

Any discrepancies between timekeepers less than 15 seconds WILL NOT be considered a
violation.

Timekeepers may raise time discrepancies of 15 seconds or more as soon as they are
discovered. No time disputes will be entertained after the trial concludes. The decisions of
the presiding judge regarding the resolution of timing disputes are final.
Timekeepers’ cards, provided in the competition manual, are to show time remaining as indicated on
the Time Card Use sheet. Rounding seconds used up or down to whole minute integers will make
timekeeping easier. Both timekeepers are responsible for keeping accurate time.
REMEMBER:
Signed Timing Sheet is to be returned with the judges' packet at the conclusion of each round.
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Ohio High School Mock Trial Competition
Time Card Use Table
For Opening Statements
When your stopwatch says
Hold up the timecard that says
1:00
2:00
3:00
3:30
4:00
3:00
2:00
1:00
:30
STOP
For Direct Examination
When your stopwatch says
Hold up the timecard that says
5:00
10:00
15:00
16:00
17:00
18:00
19:00
19:30
20:00
15:00
10:00
5:00
4:00
3:00
2:00
1:00
:30
STOP
For Cross Examination
When your stopwatch says
Hold up the timecard that says
3:00
8:00
13:00
14:00
15:00
16:00
17:00
17:30
18:00
15:00
10:00
5:00
4:00
3:00
2:00
1:00
0:30
STOP
For Closing Statements
When your stopwatch says
Hold up the timecard that says
1:00
2:00
3:00
4:00
4:30
5:00
4:00
3:00
2:00
1:00
0:30
STOP
For Rebuttal – Plaintiff ONLY (Optional)
When your stopwatch says
1:00
2:00
Hold up the timecard that says
1:00
STOP
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Ohio High School Mock Trial Competition
Timekeeping Sheet
Plaintiff Team ________________________ Defense Team _____________________ Trial #______
___________________________________________________________________________________________
Opening Statements (4 minutes each)
Plaintiff
_____
Defense
_____
___________________________________________________________________________________________
Direct/Redirect Examination of Two Plaintiff Witnesses (20 total minutes)
FIRST WITNESS (ending time)
_____
SECOND WITNESS (cumulative ending time) >20 = time violation)
_____
____________________________________________________________________________________________
Cross/Recross Examination of Two Plaintiff Witnesses (18 total minutes)
FIRST WITNESS (ending time)
_____
SECOND WITNESS (cumulative ending time) >18 = time violation)
_____
___________________________________________________________________________________________
Direct/Redirect Examination of Two Defense Witnesses (20 total minutes)
FIRST WITNESS (ending time)
_____
SECOND WITNESS (cumulative ending time) >20 = time violation)
_____
___________________________________________________________________________________
Cross/Recross Examination of Two Defense Witnesses (18 total minutes)
FIRST WITNESS (ending time)
_____
SECOND WITNESS (cumulative ending time) >18 = time violation)
_____
___________________________________________________________________________________
Closing Arguments (5 minutes each)
Plaintiff
______
Defense
______
____________________________________________________________________________________________
Rebuttal (optional) (2 minutes)
Plaintiff
_____
___________________________________________________________________________________
REMEMBER: CLOCK STOPS FOR OBJECTIONS!
TIMEKEEPER’S SIGNATURE
___________________________________________________________
185
15:00
10:00
186
5:00
4:00
187
3:00
2:00
188
1:00
:30
189
STOP
190
191
Acknowledgements
The steadfast support and expert advice of the Board of Trustees of the
Ohio Center for Law-Related Education is appreciated:
Marion Smithberger, board president, Columbus Bar Foundation
Pierce Reed, Esq., Supreme Court of Ohio
Pamela Vest Boratyn, Esq., Ohio Attorney General’s Office
William Owens, Esq., Owens & Manning
Gary Daniels, ACLU of Ohio Foundation
Richard A. Dove, Esq., Board of Commissioners on Grievances & Discipline
Thomas Friedman, Esq.
Daniel G. Hilson, Esq., Roetzel & Andress
The Case Committee who devoted many hours to create the
2013-2014 Ohio Mock Trial case is gratefully acknowledged:
David Bloomfield, Esq., Bloomfield & Kempf
Paul Cox, Esq.
Bob Hart, Esq.*
Jon Hsu, Esq., Ohio Environmental Review Appeals Commission
Laura Jurcevich, Esq., Perez & Morris
Kara Keating, Esq., Franklin County Prosecutor’s Office
Joshua Leckrone, Esq., Golden & Walters
Julie Lindstrom, Esq.
Stephanie Graubner Nelson, Esq., Supreme Court of Ohio
Diana Ramos Reardon, MPA, JD, Supreme Court of Ohio
Jeremy Young, Esq., Roetzel & Andress*
*Co-Chair of the Case Committee
********************
OCLRE Sponsors
The Supreme Court of Ohio
Ohio Attorney General’s Office
Ohio State Bar Association
American Civil Liberties Union of Ohio Foundation
OCLRE Staff
Lisa Eschleman, Jared Reitz, Kate Strickland, Tim Kalgreen, Todd Burch and Cathy Godfrey
OCLRE thanks The Ohio Channel for contributing their time and equipment to film the
2013 Mock Trial Championship Round and 2014 case video.
192