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Volume 9:
SAR to TEN
GALE
ENCYCLOPEDIA
OF AMERICAN
LAW
3RD EDITION
GALE
ENCYCLOPEDIA
OF AMERICAN
LAW
3RD EDITION
V OLUME 9
S AR TO T EN
Gale Encyclopedia of American Law, 3rd Edition © 2010 Gale, Cengage Learning
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ISBN-13: 978-1-4144-4302-7
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Printed in the United States of America

1 2 3 4 5 6 7 14 13 12 11 10
DEDICATION
Gale Encyclopedia of American Law

(GEAL) is dedicated to librarians
and library patrons throughout the
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k
Contents
VOLUME 1 VOLUME 5
Preface . . . . . . . . . . . . . . . . . . . . . . . . . ix Preface . . . . . . . . . . . . . . . . . . . . . . . . . ix
How to Use this Book . . . . . . . . . . . . . xiii How to Use this Book . . . . . . . . . . . . . xiii
Contributors . . . . . . . . . . . . . . . . . . . . xv Contributors . . . . . . . . . . . . . . . . . . . . xv
A–Ba. . . . . . . . . . . . . . . . . . . . . . . . . . 1 Fri–I . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Abbreviations . . . . . . . . . . . . . . . . . . 539 Abbreviations . . . . . . . . . . . . . . . . . . 531
VOLUME 2
VOLUME 6
Preface . . . . . . . . . . . . . . . . . . . . . . . . . ix
Preface . . . . . . . . . . . . . . . . . . . . . . . . . ix
How to Use this Book . . . . . . . . . . . . . xiii
Contributors . . . . . . . . . . . . . . . . . . . . xv
Contributors . . . . . . . . . . . . . . . . . . . . xv
Be–Col . . . . . . . . . . . . . . . . . . . . . . . . 1
J–Ma . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Abbreviations . . . . . . . . . . . . . . . . . . 539
Abbreviations . . . . . . . . . . . . . . . . . . 507
VOLUME 3
VOLUME 7
Preface . . . . . . . . . . . . . . . . . . . . . . . . . ix
Preface . . . . . . . . . . . . . . . . . . . . . . . . . ix
Contributors . . . . . . . . . . . . . . . . . . . . xv
Contributors . . . . . . . . . . . . . . . . . . . . xv
Com–Dor . . . . . . . . . . . . . . . . . . . . . . 1
Mc–Pl . . . . . . . . . . . . . . . . . . . . . . . . . 1
Abbreviations . . . . . . . . . . . . . . . . . . 539
Abbreviations . . . . . . . . . . . . . . . . . . 521
VOLUME 4 VOLUME 8
Preface . . . . . . . . . . . . . . . . . . . . . . . . . ix Preface . . . . . . . . . . . . . . . . . . . . . . . . . ix
How to Use this Book . . . . . . . . . . . . . xiii How to Use this Book . . . . . . . . . . . . . xiii
Contributors . . . . . . . . . . . . . . . . . . . . xv Contributors . . . . . . . . . . . . . . . . . . . . xv
DOT–Fre. . . . . . . . . . . . . . . . . . . . . . . 1 Po–San . . . . . . . . . . . . . . . . . . . . . . . . 1
Abbreviations . . . . . . . . . . . . . . . . . . 555 Abbreviations . . . . . . . . . . . . . . . . . . 495
vii
viii CONTENTS
VOLUME 9 VOLUME 12
Preface . . . . . . . . . . . . . . . . . . . . . . . . . ix Milestones in the Law
How to Use this Book . . . . . . . . . . . . . xiii Lawrence v. Texas . . . . . . . . . . . . . . . . . 1
Contributors . . . . . . . . . . . . . . . . . . . . xv Mapp v. Ohio . . . . . . . . . . . . . . . . . . . 95
Sar–Ten . . . . . . . . . . . . . . . . . . . . . . . 1 Marbury v. Madison . . . . . . . . . . . . . 139
Abbreviations . . . . . . . . . . . . . . . . . . 511 Miranda v. Arizona . . . . . . . . . . . . . . 161
New York Times v. Sullivan . . . . . . . . 261
VOLUME 10
Roe v. Wade . . . . . . . . . . . . . . . . . . . 407
Preface . . . . . . . . . . . . . . . . . . . . . . . . . ix
How to Use this Book . . . . . . . . . . . . . xiii VOLUME 13
Contributors . . . . . . . . . . . . . . . . . . . . xv Primary Documents
Ter–Z . . . . . . . . . . . . . . . . . . . . . . . . . 1 Foundations of U.S. Law . . . . . . . . . . . . 1
Abbreviations . . . . . . . . . . . . . . . . . . 499 Civil Rights . . . . . . . . . . . . . . . . . . . 139
Reflections on Law and
VOLUME 11 Society . . . . . . . . . . . . . . . . . . . . . 501
Milestones in the Law Legal Miscellany . . . . . . . . . . . . . . . . 597
Brown v. Board of Education of
Topeka, Kansas . . . . . . . . . . . . . . . . . 1
VOLUME 14
District of Columbia v. Heller . . . . . . . 167
Dictionary of Legal Terms . . . . . . . . . . 1
Gideon v. Wainwright . . . . . . . . . . . . 305
Kelo v. City of New London . . . . . . . . 353
G A L E E N C Y C L O P E D I A O F A M E R I C A N L A W , 3 R D E D I T I O N
Preface
T he U.S. legal system is admired around the

world for the freedoms it allows the
individual and the fairness with which it attempts
the entry and is italicized. The Dictionary of
Legal Terms volume is a glossary containing all
the definitions from GEAL.
to treat all persons. On the surface, it may seem
Further Readings
simple, yet those who have delved into it know that
this system of federal and state constitutions, To facilitate further research, a list of Further
statutes, regulations, and common-law decisions Readings is included at the end of a majority of
is elaborate and complex. It derives from the the main entries.
English common law, but includes principles Cross-References
older than England, along with some principles GEAL provides two types of cross-references,
from other lands. The U.S. legal system, like many within and following entries. Within the entries,
others, has a language all its own, but too often it is terms are set in small capital letters—for
an unfamiliar language: many concepts are still example, LIEN—to indicate that they have their
phrased in Latin. The third edition of Gale own entry in the Encyclopedia. At the end of the
Encyclopedia of American Law (GEAL), formerly entries, related entries the reader may wish to
West’s Encyclopedia of American Law, explains explore are listed alphabetically by title.
legal terms and concepts in everyday language. It
covers a wide variety of persons, entities, and Blind cross-reference entries are also in-
events that have shaped the U.S. legal system and cluded to direct the user to other entries
influenced public perceptions of it. throughout the set.
In Focus Essays
MAIN FEATURES OF THIS SET In Focus essays accompany related entries and
Entries provide additional facts, details, and arguments
This Encyclopedia contains nearly 5,000 entries on particularly interesting, important, or con-
devoted to terms, concepts, events, movements, troversial issues raised by those entries. The
cases, and persons significant to U.S. law. Entries subjects covered include hotly contested issues,
on legal terms contain a definition of the such as abortion, capital punishment, and gay
term, followed by explanatory text if necessary. rights; detailed processes, such as the Food and
Entries are arranged alphabetically in standard Drug Administration’s approval process for new
encyclopedia format for ease of use. A wide drugs; and important historical or social issues,
variety of additional features provide interesting such as debates over the formation of the U.S.
background and supplemental information. Constitution.
Definitions Sidebars
Every entry on a legal term is followed by a Sidebars provide brief highlights of some
definition, which appears at the beginning of interesting facet of accompanying entries. They
IX
X P RE F AC E
complement regular entries and In Focus essays documents, laws, manuscripts, and forms
by adding informative details. Sidebar topics fundamental to and characteristic of U.S. law.
include trying juveniles as adults, the Tea Party
Milestone Cases in the Law
Movement, and the branches of the U.S. armed
Special Appendix volumes entitled Milestones
services. Sidebars appear at the top of a text
in the Law, allows readers to take a close look at
page and are set in a box.
landmark cases in U.S. law. Readers can explore
the reasoning of the judges and the arguments
Biographies of the attorneys that produced major decisions
GEAL profiles a wide variety of interesting and on important legal and social issues. Included in
influential people—including lawyers, judges, each Milestone are the opinions of the lower
government and civic leaders, and historical and courts; the briefs presented by the parties to the
modern figures—who have played a part in U.S. Supreme Court; and the decision of the
creating or shaping U.S. law. Each biography Supreme Court, including the majority opinion
includes a timeline, which shows important and all concurring and dissenting opinions for
moments in the subject’s life as well as each case.
important historical events of the period.
Biographies appear alphabetically by the sub- Primary Documents
ject’s last name. There is also an Appendix volume containing
more than 60 primary documents, such as the
English Bill of Rights, Martin Luther King Jr.’s
ADDITIONAL FEATURES OF THIS SET Letter from Birmingham Jail, and several
presidential speeches.
Enhancements Throughout GEAL, readers will
find a broad array of photographs, charts, Citations
graphs, manuscripts, legal forms, and other Wherever possible, GEAL entries include cita-
visual aids enhancing the ideas presented in tions for cases and statutes mentioned in the
the text. text. These allow readers wishing to do
additional research to find the opinions and
Appendixes statutes cited. Two sample citations, with
Four appendix volumes are included with explanations of common citation terms, can
GEAL, containing hundreds of pages of be seen below and opposite.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed 2d 694 (1966)
1 2 3 4 5 6 7
1. Case title. The title of the case is set in italics 4. Reporter page. The number following the
and indicates the names of the parties. The reporter name indicates the reporter page
suit in this sample citation was between on which the case begins.
Ernesto A. Miranda and the state of Arizona. 5. Additional reporter page. Many cases may
2. Reporter volume number. The number pre- be found in more than one reporter. The
ceding the reporter name indicates the suit in the sample citation also appears in
reporter volume containing the case. (The volume 86 of the Supreme Court Reporter,
volume number appears on the spine of the
beginning on page 1602.
reporter, along with the reporter name).
6. Additional reporter citation. The suit in the
3. Reporter name. The reporter name is abbre-
sample citation is also reported in volume
viated. The suit in the sample citation is
16 of the Lawyer’s Edition, second series,
from the reporter, or series of books, called
U.S. Reports, which contains cases from the beginning on page 694.
U.S. Supreme Court. (Numerous reporters 7. Year of decision. The year the court issued
publish cases from the federal and state its decision in the case appears in parenthe-
courts.) ses at the end of the citation.
PR EF AC E XI
Brady Handgun Violence Prevention Act, Pub. L. No. 103–159, 107 Stat. 1536 (18 U.S.C.A. 921–925A)
1 2 3 4 5 6 7 8
1. Statute title. 6. Title number. Federal laws are divided into

2. Public law number. In the sample citation, major sections with specific titles. The num-
the number 103 indicates this law was ber preceding a reference to the U.S. Code
passed by the 103d Congress, and the num- stands for the section called Crimes and
ber 159 indicates it was the 159th law passed Criminal Procedure.
by that Congress. 7. Additional reporter. The statute in the sam-
3. Reporter volume number. The number pre- ple citation may also be found in the U.S.
ceding the reporter abbreviation indicates Code Annotated.
the reporter volume containing the statute.
8. Section numbers. The section numbers fol-
4. Reporter name. The reporter name is abbre- lowing a reference to the U.S. Code Anno-
viated. The statute in the sample citation is
tated indicate where the statute appears in
from Statutes at Large.
that reporter.
5. Reporter page. The number following the
reporter abbreviation indicates the reporter
page on which the statute begins.
1
k
3
How to Use This
Book
3 2
10
4
11
12
13
XIII
XIV H O W T O U S E T H I S BO O K
12
13
10
11
Contributors
Editorial Reviewers Sharon Fischlowitz Sandra M. Olson

Patricia B. Brecht Jonathan Flanders Anne Larsen Olstad
Matthew C. Cordon Lisa Florey William Ostrem
Frederick K. Grittner Robert A. Frame Lauren Pacelli
Halle Butler Hara John E. Gisselquist Randolph C. Park
Scott D. Slick Russell L. Gray III Gary Peter
Frederick K. Grittner Michele A. Potts
Contributing Authors Victoria L. Handler Reinhard Priester
Richard Abowitz Halle Butler Hara Christy Rain
Paul Bard Lauri R. Harding Brian Roberts
Joanne Bergum Heidi L. Headlee Debra J. Rosenthal
Michael Bernard James Heidberg Mary Lahr Schier
Gregory A. Borchard Clifford P. Hooker Mary Scarbrough
Susan Buie Marianne Ashley Jerpbak Stephanie Schmitt
James Cahoy David R. Johnstone Theresa L. Schulz
Terry Carter Andrew Kass John Scobey
Stacey Chamberlin Margaret Anderson Kelliher Kelle Sisung
Sally Chatelaine Christopher J. Kennedy James Slavicek
Joanne Smestad Claussen Anne E. Kevlin Scott D. Slick
Matthew C. Cordon John K. Krol David Strom
Richard J. Cretan Lauren Kushkin Linda Tashbook
Lynne Crist Ann T. Laughlin Wendy Tien
Paul D. Daggett Laura Ledsworth-Wang M. Uri Toch
Susan L. Dalhed Linda Lincoln Douglas Tueting
Lisa M. DelFiacco Theresa J. Lippert Richard F. Tyson
Suzanne Paul Dell’Oro Gregory Luce Christine Ver Ploeg
Heidi Denler David Luiken George E. Warner
Dan DeVoe Frances T. Lynch Anne Welsbacher
Joanne Engelking Jennifer Marsh Eric P. Wind
Mark D. Engsberg George A. Milite Lindy T. Yokanovich
Karl Finley Melodie Monahan
XV
S (cont.)
SARBANES-OXLEY ACT OF 2002 directed by management to tout the value of

Congress enacted the Sarbanes-Oxley Act of questionable stocks.
2002 (Public Company Accounting Reform and Some corporate managers, who skirted or
Investor Protection Act, Pub. L. No. 107-204, broke laws that mandated honest financial
116 Stat. 745) in the wake of corporate and reporting, transformed the drive for profitability
accounting scandals that led to bankruptcies, into a lust for personal fortune. The bubble
severe stock losses, and a loss of confidence burst when the Enron Corporation filed for
in the STOCK MARKET. The act imposes new BANKRUPTCY in December 2001, and the ac-
responsibilities on corporate management and counting firm of Arthur Andersen was con-
criminal sanctions on those managers who flout victed of OBSTRUCTION OF JUSTICE for its actions in
the law. It makes SECURITIES fraud a serious shredding Enron-related documents. As the
federal crime and also increases the penalties for stock market plummeted and investor confi-
WHITE-COLLAR CRIMES. In addition, it created an dence waned, Congress responded. Senator
oversight board for the accounting profession. Paul S. Sarbanes (D-Md.) and Representative
During the 1990s the STOCK MARKET rose Michael Oxley (R-Ohio) worked to enact a set
dramatically in value, fueled by the promise of of provisions that would prevent future debacles
the INTERNET revolution as well as large corpo- such as those that ruined Enron and Arthur
rate MERGERS AND ACQUISITIONS. Several of that Andersen. President GEORGE W. BUSH, after
decade’s changes produced severe consequences initially downplaying the need for reform,
during the first years of the new century. The signed the bill into law on July 30, 2002.
five major U.S. accounting firms developed Under the act, the SECURITIES AND EXCHANGE
consulting divisions that advised corporations COMMISSION (SEC) has the authority to prohibit,
on ways to maximize their profits. Their advice conditionally or unconditionally, temporarily or
often clashed with the traditional auditing permanently, any person who has violated laws
functions and standards of these accounting governing the issuing of stock from acting as an
firms. At worst, the accounting firms forfeited officer or director of a corporation if the SEC has
their traditional oversight function and allowed found that such person’s conduct “demonstrates
or encouraged financial reporting practices that unfitness” to serve as an officer or a director. The
misled investors. On the corporate side, man- act also imposes new disclosure requirements
agers were expected to produce short-term when companies file financial reports. Under
gains on a quarterly basis to satisfy investment Section 302 of the act, the SEC is required to
analysts who worked for stock brokerages. issue a rule that mandates that the principal
These analysts were sometimes encouraged or executive officer and the principal financial
1
2 S A R B A N E S- O X L EY A C T O F 2 0 0 2
officer certify in each annual or quarterly report secretary of the Treasury. No member may,
the accuracy of certain information. The signing concurrent with service on the Board, “share in
officer must disclose to the auditors and audit any of the profits of, or receive payments from, a
committee any significant deficiencies in the public accounting firm,” other than “fixed
design or operation of the internal controls, any continuing payments,” such as retirement pay-
FRAUD (whether it involves management or other ments. The Commission may remove members
employees who have a significant role in the “for good cause.”
issuer’s internal controls), and any significant
The PCAOB will register accounting firms,
changes in the internal controls.
develop auditing standards and rules of ethics for
Section 906 requires that the chief executive the profession, and investigate accounting firms.
officer and chief financial officer provide written The board may discipline and sanction account-
statements to be filed with each periodic report ing firms that violate rules. It is required to
filed under the Securities Exchange Act of 1934, “cooperate on an on-going basis” with desig-
certifying that the periodic report containing the nated professional groups of accountants and
financial statements fully complies with the any advisory groups convened in connection
requirements of Sections 13(a) or 15(d) of the with standard-setting, and although the board
Securities Exchange Act of 1934 and that the may, “to the extent that it determines appropri-
information contained in the periodic report ate,“ adopt standards proposed by those groups,
fairly presents, in all material respects, the it will have authority to amend, modify, repeal,
financial condition and results of operations of and reject any standards suggested by the groups.
the issuer. A knowing violation of Section 906 is The board must report to the SEC on its
punishable by up to ten years in prison and a $1 standard-setting activity on an annual basis.
million fine. A willful violation is punishable by
Some commentators have provided evi-
up to 20 years in prison and a $5 million fine.
dence that Sarbanes Oxley has resulted in more
Section 303 prohibits any officer, director, or companies making initial public offerings in
person acting at their direction “to fraudulently London rather than New York. Among those
influence, coerce, manipulate, or mislead” an who have asserted this were New York mayor
accountant who is conducting an audit. Under Michael Bloomberg and U.S. Senator Charles
Section 304, if an issuer is required to restate its Schumer (D-N.Y.), who in 2006 advocated for
financial statements as a result of misconduct, a reform of Sarbanes-Oxley based on the
the chief executive officer and chief financial assertion that London’s requirements were
officer must reimburse the issuer for any bonus more relaxed.
or other incentive-based compensation paid
Sarbanes-Oxley has been challenged, but as of
during the 12-month period following the
2009, courts have upheld its constitutionality. In
improper reporting. Those officers also must
Free Enterprise Fund v. Public Accounting Oversight
pay to the company any profits realized from the
Board, 537 F.3d 667 (D.C. Cir. 2008), the U.S.
sale of its securities during that 12-month period.
Court of Appeals for the District of Columbia
The Sarbanes-Oxley Act also authorizes the rejected arguments that the PCAOB was uncon-
establishment of a Public Company Accounting stitutional either based on how its members are
Oversight Board (PCAOB), which will oversee selected or based on SEPARATION OF POWERS
the accounting profession. Under Section 1 of principles. The U.S. SUPREME COURT in May 2009
the act, the board will have five financially granted CERTIORARI to review the decision.
experienced members who are appointed to five-
year terms. Two of the members must be or have FURTHER READINGS
been certified public accountants (CPAs), and Garner, Don E., David L. McKee, and Yosra AbuAmara
the remaining three must not be, and must never McKee. 2008. Accounting and the Global Economy after
have been, CPAs. The chair may be held by one Sarbanes-Oxley. Armonk, NY: M. E. Sharpe.
Thibodeau, Jay C., and Deborah Freier. 2009. Auditing after
of the CPA members, provided that he or she has Sarbanes-Oxley: Illustrative Cases. Boston: McGraw-Hill
not been engaged as a practicing CPA for five Irwin.
years. The board’s members will serve on a full-
time basis. Members of the board are appointed CROSS REFERENCES
by the SEC “after consultation with” the Corporate Fraud “Enron: An Investigation into Corporate
chairman of the FEDERAL RESERVE BOARD and the Fraud” (In Focus).; Fraud.
SARGENT, JOHN GARIBALDI 3
v SARGENT, JOHN GARIBALDI John Sargent.

John Garibaldi Sargent served as attorney THE LIBRARY OF
general of the United States under President CONGRESS
CALVIN COOLIDGE. He was born October 13, 1860,

in Ludlow, Vermont, to John Henmon and Ann
Eliza Hanley Sargent. He was schooled locally
and then entered Tufts College in Boston,
receiving a bachelor’s degree in 1887. Early in
his college years, Sargent became active in the
Zeta Psi Kappa Society; through the fraternity’s
activities he was introduced to many of Boston’s
oldest and most influential political families,
including the Coolidges.
After college Sargent returned to Ludlow,
where he married Mary Lorraine Gordon in
1887. Sargent studied law with attorney, and
future Vermont governor, William Wallace
Stickney. Following Sargent’s admission to the
Vermont bar in 1890, he joined Stickney in the
practice of law.
Sargent’s first political appointment came in
1898 when he was named state’s attorney for
Windsor County, Vermont. He served until 1900
when he was appointed secretary of civil and violated the Vermont Constitution by commin-
military affairs for the state of Vermont by his law gling legislative, executive, and judicial func-
partner, who was then serving his first term as tions. Sargent, arguing for Sabre and the state,
governor. After completing the two-year assign- disagreed. His position was that the SEPARATION
ment, Sargent returned to the firm and resumed OF POWERS was only violated when one branch
the practice of law. From 1902 to 1908, he argued exercised all of the powers of another branch.
the majority of his cases in federal court, and he The court agreed with Sargent and recognized
established a national reputation as a trial lawyer. the QUASI-JUDICIAL powers of executive-branch
In 1908 Sargent was named attorney general state agencies. The decision led the way for
of Vermont. While in office, he was involved in commissions and boards across the country to
one of the leading cases in the history of wield court-like powers.
Vermont’s highest court. In Sabre v. Rutland While serving as Vermont’s attorney gen-
Railroad Co., 86 Vt. 347, 85 Aik. 693 (1912), eral, Sargent also returned to school, receiving a
attorneys for the railroad argued that the master’s degree from Tufts College in 1912.
powers enjoyed by Vermont’s Public Service When Sargent returned to his law firm in 1913,
Commission (which regulated railroads) he turned his attention to partisan politics. He
John Garibaldi Sargent 1860–1939 1935 Served as director of the

1927 Sought commutation Vermont Valley, Boston and Main
of Marcus Garvey's mail Railroad; also director of the
fraud sentence Central Vermont Railroad
1908–12
1898 Named state's attorney for Windsor County, Vermont 1900–02 Served Served 1925 Appointed U.S. attorney 1929
as secretary for as attorney general by President Calvin Left
1860 Born, 1887 Graduated 1890 Admitted Civil and Military general of Coolidge; remained in office public 1939 Died,
Ludlow, Vt. from Tufts College to Vermont bar Affairs of Vermont Vermont under President Herbert Hoover office Ludlow, Vt.
❖ ◆ ◆ ◆ ◆◆ ◆ ◆ ❖
▼
1860 1885 1910 1935
1861–65 1914–18
U.S. Civil War World War I
4 SATISFACTION
supported REPUBLICAN PARTY candidates in Ver- Youseff, Sitamon M. 1998. Marcus Garvey: The FBI
mont and throughout the Northeast and Investigation Files. Lawrenceville, NJ: Africa World
Press.
campaigned vigorously for WARREN G. HARDING
in 1920 and Calvin Coolidge in 1924. CROSS REFERENCES
Sargent was named attorney general of the Coolidge, Calvin; Hoover, John Edgar.
United States on March 17, 1925, but only after the
president’s first choice, financier Charles B.
Warren, withdrew after the Senate questioned his SATISFACTION
willingness to enforce ANTITRUST LAWS. Sargent The discharge of an obligation by paying a party
proved to be a safe and noncontroversial alterna- what is due—as on a mortgage, lien, or contract
tive. He was confirmed in just one day, and he —or by paying what is awarded to a person by the
served from March 18, 1925, until March 4, 1929. judgment of a court or otherwise. An entry made
on the record, by which a party in whose favor a
Sargent was not known as a leader in the judgment was rendered declares that she has been
fight for racial equality, but he did ask the satisfied and paid.
president to commute the sentence of MARCUS
GARVEY in 1927. Garvey was a political activist
The fulfillment of a gift by will, whereby the
testator—one who dies leaving a will—makes an
from Jamaica who had been convicted of MAIL
inter vivos gift, one which is made while the
FRAUD for his efforts to recruit black Americans
testator is alive to take effect while the testator is
for his Universal Negro Improvement League
living, to the beneficiary with the intent that it be
and African Communities Association Garvey v.
in lieu of the gift by will. In EQUITY, something
United States, 267 U.S. 604, 45 S. Ct. 464 (1925).
given either in whole or in part as a substitute or
The tainted proceeding against Garvey was
equivalent for something else.
orchestrated by an overzealous young JUSTICE
DEPARTMENT attorney named J. EDGAR HOOVER.
Sargent was outspoken in his disapproval of SAVE

Hoover’s tactics in the Garvey case, and he was To except, reserve, or exempt; as where a statute
among the first attorneys general to condemn saves vested—fixed—rights. To toll, or suspend
the gathering of evidence through WIRETAPPING, a the running or operation of; as, to save the
STATUTE OF LIMITATIONS.
tactic approved by Hoover when he was director
of the FEDERAL BUREAU OF INVESTIGATION. Testify-
ing before a congressional committee, Sargent SAVING CLAUSE
said, “Wire tapping, ENTRAPMENT, or use of any In a statute, an exception of a special item out
illegal or unethical tactics in procuring infor- of the general things mentioned in the statute.
mation will not be tolerated . . . .” A restriction in a repealing act, which is intended
In 1930 Sargent returned to Vermont and to save rights, while proceedings are pending,
again took an active role in his law firm. In his from the obliteration that would result from an
later years, Sargent devoted his time and energy unrestricted repeal. The provision in a statute,
to local businesses and community organiza- sometimes referred to as the severability clause,
tions. When years of political infighting finally that rescues the balance of the statute from a
forced the reorganization of Vermont’s rail- declaration of unconstitutionality if one or more
roads in the early 1930s, Sargent was appointed parts are invalidated.
to oversee the process. Sargent died at his home With respect to existing rights, a saving
in Ludlow, Vermont, on March 5, 1939. clause enables the repealed law to continue in
force.
FURTHER READINGS
Justice Department. 1991. 200th Anniversary of the Office of
the Attorney General, 1789–1989. Washington, D.C.: SAVINGS AND LOAN ASSOCIATION
Department of Justice, Office of Attorney General and A savings and loan association is a financial
Justice Management Division. institution owned by and operated for the benefit
“Mr. Sargent.” Time (March 30, 1925). Available on-
of those using its services. The primary purpose of
line at http://www.time.com/time/magazine/article/
0,9171,720053,00. html?iid=digg_share; website home the savings and loan association is making loans
page: http://www.time.com (accessed September 7, to its members, usually for the purchase of real
2009). estate or homes.
S A V I N G S A N D L O A N AS S O C I A T I O N 5
The savings and loan industry was first An example of a

established in the 1830s as a BUILDING AND LOAN Saving Clause saving clause.
ASSOCIATION. The first savings and loan association ILLUSTRATION BY GGS
CREATIVE RESOURCES.
was the Oxford Provident Building Society in All acts of limitations, whether applicable to civil causes and
REPRODUCED BY
proceedings, or to the prosecution of offenses, or for the
Frankfort, Pennsylvania. As a building and loan recovery of penalties or forfeitures, embraced in the Revised PERMISSION OF GALE, A
association, Oxford Provident received regular Statutes and covered by the repeal contained therein, shall not PART OF CENGAGE
weekly payments from each member and then be affected thereby; but suits, proceedings, or prosecutions, LEARNING.
whether civil or criminal, for causes arising, or acts done or
lent the money to individuals until each member committed prior to said repeal, may be commenced and
could build or purchase his own home. Building prosecuted within the same time as if said repeal had not been
made. July 30, 1947, c. 388, §1, 61 Stat. 633.
and loan associations were financial intermediar-
ies, which acted as a conduit for the flow of
investment funds between savers and borrowers.
Savings and loan associations may be state regulations, and even for losses that result from
or federally chartered. When formed under state a violation of the corporation’s bylaws.
law, savings and loan associations are generally The responsibilities of the officers and
incorporated and must follow the state’s directors of a savings and loan association are
requirements for incorporation, such as provid- generally the same as the responsibilities of
ing ARTICLES OF INCORPORATION and BYLAWS. officers and directors of other corporations. They
Although it depends on the applicable state’s must select competent individuals to administer
law, the articles of incorporation usually must the institution’s affairs, establish operating poli-
set forth the organizational structure of the cies and internal controls, monitor the institu-
association and define the rights of its members tion’s operations, and review examination and
and the relationship between the association and audit reports. Furthermore, they have the power
its stockholders. A savings and loan association to assess losses incurred and to decide how the
may not convert from a state corporation to a institution will recover those losses.
federal corporation without the consent of the Prior to the 1930s, savings and loan associa-
state and compliance with state laws. A savings tions flourished. However, during the Great
and loan association may also be federally Depression the savings and loan industry suf-
chartered. Federal savings and loan associations fered. More than 1,700 institutions failed, and
are regulated by the OFFICE OF THRIFT SUPERVISION. because depositor’s insurance did not exist,
Members of a savings and loan association customers lost all of the money they had
are stockholders of the corporation. The deposited into the failed institutions. Congress
members must have the capacity to enter into responded to this crisis by passing several banking
a valid contract, and as stockholders they are acts. The Federal Home Loan Bank Act of 1932,
entitled to participate in management and share 12 U.S.C.A. §§ 1421 et seq., authorized the
government to regulate and control the financial
in the profits. Members have the same liability
services industry. The legislation created the
as stockholders of other corporations, which
Federal Home Loan Bank Board (FHLBB) to
means that they are liable only for the amount
oversee the operations of savings and loan
of their stock interest and are not personally
institutions. The Banking Act of 1933, 48 Stat.
liable for the association’s NEGLIGENCE or debts.
162, created the FEDERAL DEPOSIT INSURANCE
Officers and directors control the operation CORPORATION (FDIC) to promote stability and
of the savings and loan association. The officers restore and maintain confidence in the nation’s
and directors have the duty to organize and banking system. In 1934, Congress passed the
operate the institution in accordance with state National Housing Act, 12 U.S.C.A. §§ 1701 et seq.,
and federal laws and regulations and with the which created the National Housing Administra-
same degree of diligence, care, and skill that an tion (NHA) and the Federal Savings and Loan
ordinary prudent person would exercise under Insurance Corporation (FSLIC). The NHA was
similar circumstances. The officers and direc- created to protect mortgage lenders by insuring
tors are under the common-law duty to exercise full repayment, and the FSLIC was created to
due care as well as the duty of loyalty. Officers insure each depositor’s account up to $5,000.
and directors may be held liable for breaches of The banking reform in the 1930s restored
these common-law duties, for losses that result depositors’ faith in the savings and loan industry,
from violations of state and federal laws and and it was once again stable and prosperous.
6 S A V I NG S A N D L O A N AS S O C I A T I O N
However, in the 1970s the industry began to feel funds from Lincoln Savings and Loan in Arizona
the impact of competition and increased interest to invest in risky ventures. Keating’s actions
rates; investors were choosing to invest in money eventually left more than 20,000 people without
markets rather than in savings and loan associa- savings, and Keating went to prison. The senators
tions. To boost the savings and loan industry, involved became known as the Keating Five:
Congress began deregulating it. Three types of JOHN MCCAIN (R-Ariz.), Alan Cranston (D-Calif.),
deregulation took place during this time. John Glenn (D-Ohio.), Don Riegle (D-Mich.),
The first major form of deregulation was the and Dennis DeConcini (D-Ariz.).
enactment of the Depository Institutions In an effort to restore confidence in the thrift
Deregulation and Monetary Control Act of industry, Congress enacted the Financial Insti-
1980 (94 Stat. 132). The purpose of this tutions Reform, Recovery, and Enforcement Act
legislation was to allow investors higher rates of 1989 (FIRREA) (103 Stat. 183). The purpose
of return, thus making the savings and loan of FIRREA, as set forth in Section 101 of the bill,
associations more competitive with the money was to promote a safe and stable system of
markets. The industry was also allowed to offer affordable housing finance; improve supervi-
money-market options and provide a broader sion; establish a general oversight by the
range of services to its customers. TREASURY DEPARTMENT over the director of the
The second major form of deregulation was Office of Thrift Supervision; establish an inde-
the enactment of the Garn–St. Germain Depos- pendent insurance agency to provide deposit
itory Institutions Act of 1982 (96 Stat. 1469). insurance for savers; place the Federal Deposit
This act allowed savings and loan associations to Insurance System on sound financial footing;
diversify and invest in other types of loans create the Resolution Trust Corporation; pro-
besides home construction and purchase loans, vide the necessary private and public financing
including commercial loans, state and munici- to resolve failed institutions in an expeditious
pal SECURITIES, and unsecured REAL ESTATE loans. manner; and improve supervision, enhance
enforcement powers, and increase criminal and
The third form of deregulation decreased
the amount of regulatory supervision. This civil penalties for crimes of FRAUD against
deregulation was not actually an “official” financial institutions and their depositors.
deregulation; instead it was the effect of a FIRREA increased the enforcement powers of
change in required accounting procedures. The the federal banking regulators and conferred a
GENERALLY ACCEPTED ACCOUNTING PRINCIPLES were wide array of administrative sanctions. FIRREA
changed to Regulatory Accounting Procedures, also granted federal bank regulators the power to
which allowed savings and loan associations to hold liable “institution-affiliated parties” who
include speculative forms of capital and exclude engage in unsound practices that harm the
certain liabilities, thus making the thrifts appear insured depository institution. The institution-
to be in solid financial positions. This action affiliated parties include directors, officers, em-
resulted in more deregulation. ployees, agents, and any other persons, including
In the 1980s the savings and loan industry attorneys, appraisers, and accountants, partici-
collapsed. By the late 1980s at least one-third of the pating in the institution’s affairs. FIRREA also
savings and loan associations were on the brink of allows federal regulators to seize the institution
insolvency. Eight factors were primarily responsi- early, before it is “hopelessly insolvent” and too
ble for the collapse: a rigid institutional design, expensive for federal insurance funds to cover.
high and volatile interest rates, deterioration of Criminal penalties were also increased in
asset quality, federal and state deregulation, 1990 by the CRIME CONTROL ACT, 104 Stat. 4789,
fraudulent practices, increased competition in which included the Comprehensive Thrift and
the financial services industry, and tax law changes. Bank Fraud Prosecution and Taxpayer Recovery
The savings and loan collapse was also due Act of 1990 (104 Stat. 4859). This act increased
in part to improper political influence. One the criminal penalties “attaching” to crimes
prominent member of the savings and loan related to financial institutions.
industry, Charles Keating, was influential with FIRREA created the Office of Thrift Supervi-
members of Congress. He convinced several sion (OTS) and the Resolution Trust Corporation
U.S. senators to argue against tougher regula- (RTC). FIRREA eliminated the FHLBB and
tions. At the same time, Keating used depositors’ created the OTS to take its place. The RTC was
SAXBE, WILLIAM BART 7
created solely to manage and dispose of the assets William B. Saxbe.

of thrifts that failed between 1989 and August COURTESY OF CHESTER
1992. In addition, the FSLIC was eliminated, and WILLCOX & SAXBE LLP
the FDIC, which oversaw the banking industry,

began dealing with the troubled thrifts.
The RTC was in existence for six years, closing
its doors on December 31, 1996. During its
existence, it merged or closed 747 thrifts and sold
$465 billion in assets, including 120,000 pieces of
property. The direct cost of resolving the failed
thrifts amounted to $90 billion; however, analysts
claim that it will take approximately 30 years to
fully bail out the savings and loan associations at a
cost of approximately $480.9 billion.
FURTHER READINGS
American Bar Association. 1995. “How a Good Idea Went
Wrong: Deregulation and the Savings and Loan Crisis.”
Administrative Law Review 47.
American Bar Association. The Committee of Savings and
Loan Associations Section of Corporation, Banking,
and Business. 1973. Handbook of Savings and Loan Law.
Chicago: American Bar Association.
Calavita, Kitty, Henry N. Pontell, and Robert H. Tillman.
1999. Big Money Crime: Fraud and Politics in the Savings
and Loan Crisis. Berkeley: Univ. of California Press.
Gorman, Christopher Tyson. 1994–95. “Liability of Direc- Saxbe was born on June 24, 1916, in the
tors and Officers under FIRREA: The Uncertain farming community of Mechanicsburg, Ohio,
Standard of §1821(K) and the Need for Congressional to Bart Rockwell Saxbe, a religious and plain-
Reform.” Kentucky Law Journal 83.
spoken community leader who made his living
Turck, Karsten F. 1998. The Crisis of American Savings &
Loan Associations: A Comprehensive Analysis. New York: as a cattle buyer, and Faye Henry Carey Saxbe, a
P. Lang. political free-spirit who counted PATRICK HENRY
U.S. House. 1989. 101st Cong., 1st sess. H.R. 54 (I). United among her ancestors. Saxbe’s education seemed
States Code Congressional and Administrative News. to be influenced by his parents’ example; when
CROSS REFERENCE he entered Ohio State University in 1936, he
chose political science as his major field of
Banks and Banking.
study. He received a Bachelor of Arts degree in
1940. In the fall of that year, he married Ardath
v SAXBE, WILLIAM BART
Louise (“Dolly”) Kleinhans. They eventually
William Bart Saxbe, a quotable lawyer, politi-
had three children: William Bart Jr., Juliet
cian, and U.S. senator from Ohio, served as U.S.
Louise, and Charles Rockwell.
attorney general under President RICHARD M.
NIXON. He also served as ambassador to India While attending college, Saxbe was a
under President GERALD R. FORD. member of the Ohio NATIONAL GUARD. After
William Bart Saxbe 1916– 1994 Joined his son’s law practice at Chester, Hoffman, Wilcox & Saxbe
1999 Participated
1974 Served as U.S. attorney general under Nixon and Ford 1982 Hired as in historic forum
1975–77 independent of former U.S.
1947–54 1969–74 Served as special counsel Attorneys General
1916 Born, 1940–45 Served in Ohio 1957–67 Served in U.S. for the Central at American Bar
Mechanicsburg, Served in House of Served as Ohio U.S. ambassador States Teamsters Association
Ohio Army Air Force Representatives attorney general Senate to India Pension Fund convention
❖ ◆ ◆ ◆ ◆
▼
1925 1950 1975 2000

◆
1914–18 1939–45 1950–53 1961–73 2000 I’ve Seen the
World War I World War II Korean War Vietnam War Elephant published
8 S A XB E , WI L L I A M BA RT
college, he enlisted in the Army Air Corps, alienated most of Washington when he said, “The
serving from 1940 to 1945. Saxbe was called to first six months I kept wondering how I got
serve again during the Korean conflict in the [here]. After that, I started wondering how all of
1950s; he was discharged from the reserve with them did.”
the rank of colonel in 1963. In addition to his disdain for the insulated
Immediately after WORLD WAR II, Saxbe lives of Washington politicians, Saxbe was
returned to Ohio with the intention of furthering frustrated with the pace of legislation on Capitol
his education. He gave serious thought to Hill. To address the problem, he joined forces
pursuing a career in the ministry of the Episcopal with Senator Alan M. Cranston to develop a
Church, but his long-standing interest in political two-track system of moving legislation through
and COMMUNITY SERVICE prevailed. Saxbe entered the Senate. The system allowed less controver-
law school at Ohio State University in 1945 and, sial bills to pass through the legislative process
simultaneously, launched a campaign to serve in quickly, while more volatile measures were held
the Ohio House of Representatives. He was for debate and discussion. When other efforts to
elected and served four terms from 1947 to 1954. improve the process stalled, Saxbe removed
Saxbe completed his law degree at the end of his himself from the Senate entirely, by taking part
second term. He served as House majority leader in travel junkets. Saxbe’s pleas for aid to East
in 1951 and 1952, and as speaker of the House in Bengal and for discontinuation of aid to
1953 and 1954. Pakistan were direct results of his findings while
on a trip; he considered these actions to be
Saxbe left the Ohio Legislature at the among his greatest achievements in the Senate.
conclusion of his fourth term. He returned to
I FEEL VERY Saxbe’s frustration with Washington was
Mechanicsburg, where he raised cattle on the
STRONGLY THAT THE not limited to the Senate. For example, Saxbe
family farm. He also partnered with two
had defied protocol by challenging Nixon’s
JUSTICE DEPARTMENT longtime friends to establish the Columbus,
Vietnam policy during a social gathering at the
IS THE VERY HEART Ohio, law firm of Saxbe, Boyd, and Prine. He
White House for freshman senators. In re-
AND SOUL OF OUR
practiced law for two years before re-entering
sponse, the president’s staff kept Saxbe out of
the political arena in 1956. In 1957 he ran as
COUNTRY, BECAUSE the Oval Office and away from Nixon for
the Republican candidate for state attorney
GOVERNMENT almost two years after that disastrous first
general. Over the next decade, he served four
WITHOUT LAW IS
meeting with the chief executive.
terms in that state office. As attorney general,
TYRANNY. Saxbe proved to be a tough and capable crime Saxbe’s growing contempt for the White
—WILLIAM B. SAXBE fighter. He believed that CAPITAL PUNISHMENT was House staff reached a new height in 1971, when
a strong deterrent and that stiff prison sentences he referred to Nixon aides H. R. Haldeman and
should be imposed for gun-related crimes. John D. Ehrlichman as “a couple of Nazis” and
again in 1972 when he commented on Nixon’s
Although conservative in his views on crime professed innocence in the WATERGATE scandals,
and money, Saxbe described himself as “liberal on saying that the chief executive sounded “like the
the rights of people.” In 1968 Saxbe took his fellow who played the piano in a brothel for twenty
unique mix of fiscal conservatism and social years, and insisted that he didn’t know what was
responsibility to the electorate. He ran as the going on upstairs.” (The Watergate scandals began
Republican candidate for a U.S. Senate seat, and he with a break-in at the Democratic National
won a close election over liberal Democrat John J. Committee headquarters—located in the Water-
Gilligan. His stand against the Pentagon’s deploy- gate Office Towers—and eventually toppled the
ment of antiballistic missiles during the VIETNAM Nixon administration.)
WAR surprised many of those who thought his
campaign promises were mere rhetoric. Gilligan In September 1973 Saxbe announced that
was quoted as saying, “If I had known he was going he would not seek reelection to the Senate. Just a
month later, Nixon asked him to accept an
to be like this, I would have voted for him myself.”
appointment as attorney general of the United
Saxbe’s voting record on most major issues
States to replace ELLIOT RICHARDSON. Richardson,
showed that he moved gradually to the right
Nixon’s third attorney general, had resigned rather
during his four years in the U.S. Senate.
than obey an EXECUTIVE ORDER to fire Watergate
Saxbe was quickly disenchanted with life as a PROSECUTOR ARCHIBALD COX. Saxbe was reluctant
senator. He felt that many of his senate colleagues to accept the nomination, but he knew that
were sadly out of touch with the electorate. He the administration wanted to avoid a long
S C A L I A , AN T O N I N 9
confirmation battle and that his past criticism of 2002 the auditorium of Ohio State University’s
the president would make him a credible candi- Moritz College of Law was named the William
date with both Nixon supporters and detractors. B. Saxbe Law Auditorium in recognition of his
After a two-hour discussion with Nixon, in history of public service and his generous
which the president denied any knowledge or donations to the school.
involvement in the Watergate scandals, Saxbe
FURTHER READINGS
accepted the nomination. He took office in
Barrett, John Q. 1998. “All or Nothing, or Maybe
January 1974. His goal was to restore the
Cooperation: Attorney General Power, Conduct, and
Department of Justice’s credibility with the Judgment in Relation to the Work of an Independent
U.S. public and to keep the public informed of Counsel.” Mercer Law Review 49 (winter).
the department’s activities. Powell, H. Jefferson. 1999. The Constitution and the
Attorneys General. Durham, N.C: Carolina Academy
Saxbe initiated weekly news conferences at
Press.
the beginning of his term but curtailed them Saxbe, William B., with Peter D. Franklin. 2000. I’ve Seen the
quickly when he found that his offhand Elephant. Kent, Ohio: Kent State Univ. Press.
comments generated more interest than did
his substantive efforts. Among Saxbe’s more SCAB
printable gaffes were his reference to PATTY
A pejorative term used colloquially in reference to
HEARST as a common criminal and his observa-
a nonunion worker who takes the place of a union
tion that Jewish intellectuals of the 1950s were employee on strike or who works for wages and
enamored with the Communist party. other conditions that are inferior to those
As attorney general, Saxbe supported legis- guaranteed to a union member by virtue of the
lation limiting access to criminal records of union contract; also known as a strikebreaker.
arrested and convicted persons, and he contin-
ued to favor capital punishment and tough CROSS REFERENCE
sentences for gun-related crimes. He conducted Labor Union.
an investigation into the FBI’s counterintelli-
gence program—Cointelpro—and condemned v SCALIA, ANTONIN
the program for its harassment of left-wing In 1986 Antonin Scalia was appointed to the
groups, black leaders, and campus radicals. U.S. Supreme Court by President RONALD
REAGAN, becoming the first American of Italian
He also worked on two of the biggest antitrust
cases in history, against IBM and AT&T. descent to serve as an associate justice. Known
for his conservative judicial philosophy and
After Nixon’s resignation, Saxbe continued to narrow reading of the Constitution, Scalia has
serve as attorney general in the Ford administra- repeatedly urged his colleagues on the Court to
tion. He resigned in December 1974 to accept an overturn ROE V. WADE, 410 U.S. 113, 93 S. Ct.
appointment as U.S. ambassador to India. 705, 35 L. Ed. 2d 147 (1973), the decision
For the next 20 years Saxbe practiced law in recognizing a woman’s right to terminate her
Florida, Ohio, and Washington, D.C., and he pregnancy under certain circumstances.
remained active in REPUBLICAN PARTY politics. In Scalia was born March 11, 1936, in Trenton,
March 1994 he announced that he would join the New Jersey. Before he began grade school, Scalia
Columbus, Ohio, law firm of Chester, Hoffman, and his family moved to Elmhurst, New York,
Willcox, and Saxbe, where his son was a partner. where he spent much of his boyhood. Scalia is
Saxbe is often called upon to speak about the the only child of Eugene Scalia, an Italian
turmoil of the Watergate years and his experi- immigrant who taught romance languages at
ence in the final days of the Nixon administra- Brooklyn College for 30 years, and Catherine
tion. On the eve of Nixon’s funeral in April 1994, Scalia, a first-generation Italian-American who
Saxbe acknowledged that he had never made an taught elementary school.
attempt to see Nixon again after his resignation In 1953 Antonin Scalia graduated first in
because the former president had lied to him his class at St. Francis Xavier High School, a
about his involvement in the Watergate scandals. Jesuit military academy in Manhattan. Four
Saxbe published an autobiography in 2000 years later Scalia was valedictorian at George-
while continuing to practice law at Chester, town University, receiving a bachelor’s degree in
Willcox & Saxbe, where he specialized in history. In the spring of 1960 Scalia graduated
general business law and strategic counsel. In magna cum laude from Harvard Law School
10 S C A L I A , AN T O N I N
Antonin Scalia. Telecommunications Policy. Under President

MOLLIE ISAACS, GERALD R. FORD Scalia served as assistant attorney
COLLECTION OF THE general for the JUSTICE DEPARTMENT, where he
SUPREME COURT OF THE
drafted a key presidential order establishing new
UNITED STATES
restrictions on the information-gathering activ-
ities of the CENTRAL INTELLIGENCE AGENCY and
FEDERAL BUREAU OF INVESTIGATION.
In 1977 Scalia left public office to become

a visiting scholar at the American Enterprise
Institute, a conservative think tank in Washing-
ton, D.C. During this same year, Scalia also
returned to academia, accepting a position as
law professor at the University of Chicago,
where he developed a reputation as an expert in
ADMINISTRATIVE LAW. In 1982 President Reagan
appointed Scalia to the U.S. Court of Appeals
for the District of Columbia, which many
lawyers consider to be the second most power-
ful court in the country.
When Chief Justice WARREN BURGER retired in
1986, President Reagan elevated sitting justice
where he served as an editor for the Harvard WILLIAM REHNQUIST to the chair of chief justice
Law Review. Known to his friends as Nino, and nominated Scalia to fill the vacancy of
Scalia was known to many of his classmates as associate justice. Confirmed by a vote of 98–0 in
an eager and able debater. the Senate, Scalia became the first Roman
Catholic to be appointed to the U.S. Supreme
Upon graduation from law school, Scalia
Court since WILLIAM J. BRENNAN JR. in 1957.
accepted a position as an associate attorney with
a large law firm in Cleveland, Ohio, where he Scalia’s tenure on the high court has been
practiced law until 1967. He resigned to teach at marked by a JURISPRUDENCE of ORIGINAL INTENT.
the University of Virginia School of Law. In Proponents of original intent, also called origin-
1971 Scalia joined the Nixon Administration to alists, believe that the Constitution must be
serve as general counsel for the Office of interpreted in light of the way it was understood
Antonin Scalia 1936– 2003 Received Citadel of Free Speech Award from City Club; declared in
speech that government has power to curtail rights during wartime
2002 Delivered widely debated speech on the death penalty and religious authority for democracy at the University of Chicago
1996 Dissented in U.S. v. Virginia
1994 Distinguished Jurist in Residence, Touro Law Center
1974 Appointed assistant U.S. attorney general 1997
1986 Appointed associate
Wrote
justice of the U.S.
1972 Became chair of the Administrative majority
Supreme Court 1988 Wrote
Conference of the United States opinion 2004 The
majority opinion
1982 in Coy v. Iowa in Printz Opinions of
1971–72 Served as general counsel for the v. U.S. Justice Antonin
Appointed
Office of Telecommunications Policy Scalia published
1977 to the 1992
Joined the U.S. Court Dissented 2000
1960 Served as editor of law review,
1967–71 University of Appeals in part in Voted with 2008 Wrote
graduated from Harvard Law School
Taught law of Chicago for the Planned majority majority opinion
1936 Born, 1957 Graduated from at UVA law Law School District of Parenthood in Bush in District of
Trenton, N.J. Georgetown Univ. school faculty Columbia v. Casey v. Gore Columbia v. Heller
❖ ◆ ◆ ◆ ◆ ◆ ◆ ◆ ◆ ◆ ◆ ◆◆ ◆ ◆◆◆ ◆
▼
1930 1950 1975 2000

◆
1939–45 1950–53 1961–73 2000 Presidential election result uncertain due
World War II Korean War Vietnam War to disputed Fla. vote count; recount halted by
U.S. Supreme Court with 5–4 vote in Bush v. Gore
S C A L I A , AN T O N I N 11
at the time it was framed and ratified. According presently support or oppose capital punishment
to Scalia, originalism has two virtues: preserving plays only a negligible role in Scalia’s analysis.
the SEPARATION OF POWERS in a democratic society, Scalia’s interpretation of the DUE PROCESS
and curbing judicial discretion. CLAUSE of the Fifth and Fourteenth Amendments
The Constitution delegates specific enumer- provides another example of his judicial philos-
ated powers to the three branches of the federal ophy. According to Scalia, the Due Process
government. The Legislative Branch is given Clause was originally understood to offer only
the power to make law under Article I; the procedural protection, such as the right to a FAIR
EXECUTIVE BRANCH is given the power to enforce HEARING before an impartial judge and an
the law under Article II; and the Judicial Branch unbiased jury. Nowhere in the text of the
is given the power to interpret and apply the law Constitution, Scalia notes, is there any hint that
under Article III. Originalists believe that the Due Process Clause offers substantive
democracy is enhanced when the lawmaking protection. It is not surprising then that Scalia
power is exercised by the federal legislature has dissented from U.S. Supreme Court deci-
because, unlike federal judges who are sions that have relied on the Due Process Clause
appointed by the president and given life tenure in protecting the substantive right of women to
on the bench, members of Congress are held terminate their pregnancies under certain
accountable to the electorate at the ballot box. circumstances (Planned Parenthood v. Casey,
JUDGES IN A REAL
This separation of powers is blurred, Scalia 505 U.S. 833, 112 S. Ct. 2791, 120 L. Ed.
SENSE ‘MAKE’
argues, when unelected federal judges decide 2d 674 [1992]). Likewise, Scalia disagreed with
cases in accordance with their own personal the Court’s decision that a state law grant- LAW. . . . [T]HEY
preferences, which may be contrary to those ing VISITATION RIGHTS to grandparents was uncon- MAKE IT AS JUDGES
expressed by the framers and ratifiers. In such stitutional because it infringed upon the funda- MAKE IT, WHICH IS TO
instances, Scalia asserts, federal judges usurp the mental rights of parents to raise their children
SAY AS THOUGH THEY
legislative function by making new law that (Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054,
WERE ‘FINDING’ IT—
effectively replaces the popular understanding 147 L. Ed. 2d 49 (2000)). No such right, Scalia
has commented, can be found in the express DISCERNING WHAT
of the Constitution at its time of adoption. The
only way to curb this type of judicial discretion language of any constitutional provision. THE LAW IS, RATHER
and to preserve the separation of powers, Scalia Scalia has surprised some observers by his THAN DECREEING
concludes, is by requiring federal judges to literal reading of the SIXTH AMENDMENT, which WHAT IT IS TODAY
interpret and apply the Constitution in light of guarantees the right of criminal defendants to CHANGED TO, OR
its original meaning. This meaning can be be “confronted with witnesses against them.” In
WHAT IT WILL
illuminated, Scalia says, by paying careful atten- Coy v. Iowa, 487 U.S. 1012, 108 S. Ct. 2798, 101
TOMORROW BE.
tion to the express language of the Constitution L. Ed. 2d 857 (1988), Scalia wrote that the Sixth
and the debates surrounding the framing and Amendment requires a face-to-face confronta- —ANTONIN SCALIA
RATIFICATION of particular provisions. tion and that such an opportunity had been
Scalia’s interpretation and application of the denied when a large screen had been placed
EIGHTH AMENDMENT best exemplifies his judicial between a DEFENDANT charged with CHILD
MOLESTATION and the child who was accusing
philosophy. The Eighth Amendment prohibits
CRUEL AND UNUSUAL PUNISHMENT. Courts that
him. The Sixth Amendment, Scalia concluded,
evaluate a claim under the Cruel and Unusual intended for courts to preserve the adversarial
Punishments Clause, Scalia argues, must deter- nature of the criminal justice system by
mine whether a particular punishment was protecting the rights guaranteed by the Con-
allowed in 1791 when the Eighth Amendment frontation Clause over governmental objections
was framed and ratified. Moreover, he argues that face-to-face CROSS-EXAMINATION may be
that courts must not take into account notions emotionally traumatic for some victims.
of the evolving standards of human decency. Scalia drew the ire of advocates for GAY AND
For example, Scalia contends that CAPITAL LESBIAN RIGHTSwith his DISSENT in ROMER V. EVANS,
PUNISHMENT was clearly contemplated by the 517 U.S. 620, 116 S. Ct. 1620, 134 L. Ed. 2d 855
framers and ratifiers of the federal Constitution. (1996). The Court invalidated a CONSTITUTIONAL
The FIFTH AMENDMENT explicitly references capi- AMENDMENT by the state of Colorado that
tal crimes, Scalia observes, and capital punish- prohibited anti-discrimination laws intended
ment was prevalent in the United States when to protect gays, lesbians, and bisexuals. Accord-
the Constitution was adopted. Whether states ing to the majority in the decision, the state
12 SCHECHTER POULTRY CORP. V. UNITED STATES
constitutional amendment violated the FOUR- Interpretation: Federal Courts and the Law
TEENTH AMENDMENT of the U.S. Constitution. (1997). In 2008, Scalia’s book, Making Your
Scalia disagreed, writing a scathing dissent. Case: The Art of Persuading Judges (with
According to Scalia, the majority opinion Bryan A. Garner, editor in chief of Black’s
“places the prestige of this institution behind Law Dictionary) was published.
the proposition that opposition to homosexual-
ity is as reprehensible as racial or religious bias.” FURTHER READINGS
Frantz, Douglas. 1986. “Scalia Embodies President’s Hope
Whether Scalia is writing about the Sixth
for Court’s Future.” Chicago Tribune (August 3).
Amendment, the Eighth Amendment, or any Hasson, Judy. 1986. “Scalia Got Early Chance to Show His
other Constitutional provision, some regard his Legal Talents.” Seattle Times (August 5).
judicial opinions as among the most well written Scalia, Antonin, and Paul I. Weizer. 2004. The Opinions of
in the history of the U.S. Supreme Court. The Justice Antonin Scalia: The Caustic Conservative. New
clarity, precision, and incisiveness with which he York: P. Lang.
Scalia, Antonin. 1997. A Matter of Interpretation: Federal
writes is frequently praised. However, some of
Courts and the Law. Princeton, N.J.: Princeton Univ.
Scalia’s opinions take on an acerbic quality. Press.
Often relegated to the role of dissenting justice, ———. 1989. “Originalism: The Lesser Evil.” University of
Scalia is not above hurling invectives at his Cincinnati Law Review 57.
colleagues on the Court, sometimes criticizing
their opinions as silly and preposterous.
SCHECHTER POULTRY CORP. V.
In 2004 Scalia would not RECUSE himself from UNITED STATES
a case involving former Vice President Richard A.L.A. Schechter Poultry Corp. v. United States,
Cheney, with whom he has dined and hunted. 295 U.S. 495, 55 S. Ct. 837, 79 L. Ed. 1570 (1935),
Cheney was contesting a federal court mandate is one of the most famous cases from the Great
to release internal files of an energy task force he Depression era. The case tested the legality of
had overseen for the Bush administration. Also certain methods used by Congress and President
that year, tapes of Scalia’s speech at a Mississippi FRANKLIN D. ROOSEVELT to combat the devastating
high school, which two journalists recorded, economic effects of the Depression. After the U.S.
were erased at the insistence of a U.S. deputy Supreme Court declared the methods unconsti-
marshal; journalism groups were outraged. tutional, Roosevelt publicly scolded the Court
Controversy also surrounded Scalia two years and later used the decision as one justification for
later, when the Boston Herald reported that he a controversial plan to stock the Court with
made an obscene hand gesture at the Cathedral justices more receptive of Roosevelt’s programs.
of the Holy Cross in that city. Scalia said the
newspaper misinterpreted the gesture. At the heart of the Schechter case was
legislation passed by Congress in 1933. The NA-
Scalia has continued to speak stridently TIONAL INDUSTRIAL RECOVERY ACT (NIRA) (48 Stat.
about the judiciary. He said in 2004 that the top 195) was passed in response to the unemploy-
court spends too much time on morally tinged ment and poverty that swept the nation in the
cases that elected legislatures should decide. early 1930s and provided for the establishment
And late in 2006, he urged higher pay for federal of local codes for fair competition in industry.
judges. “If you become a federal judge in the The codes were written by private trade and
Southern District of New York [Manhattan], industrial groups. If the president approved the
you can’t raise a family on what the salary is,” codes, they became law. Businesses were
Scalia said while addressing the Northern required to display a Blue Eagle insignia from
Virginia Technology Council. the NATIONAL RECOVERY ADMINISTRATION to signify
In June 2008 Scalia, writing the majority their compliance with the codes. Typical local
opinion in a 5-4 Supreme Court ruling that codes set minimum wages and maximum hours
struck down a Washington, D.C. gun ban, said, for workers and gave workers the right to
“It is not the role of this court to pronounce the organize into unions and engage in COLLECTIVE
SECOND AMENDMENT extinct.” BARGAINING with management. Codes also pre-
Scalia married the former Maureen scribed fair trade practices, and many codes set
McCarthy in 1960. They have nine children. minimum prices for the sale of goods.
Scalia has written numerous articles on a variety The Schechter Poultry Corporation, owned
of issues and is the author of A Matter of and operated by Joseph, Martin, Alex, and Aaron
SCHECHTER POULTRY CORP. V. UNITED STATES 13
Schechter, was in the business of selling chickens at clause, Congress had the power to regulate
wholesale. The corporation purchased some of the commerce between the states, not intrastate
poultry from outside the state of New York. It commerce. The power to enact legislation on
bought the poultry at markets and railroad intrastate commerce was reserved to the states
terminals in New York City and sold the poultry under the TENTH AMENDMENT to the Constitution.
to retailers in the city and surrounding environs. In According to the Court, the business conducted by
April 1934 President Roosevelt approved the code the Schechters was decidedly intrastate. Their
of fair competition for the live poultry industry of business was licensed in New York, they bought
the New York City metropolitan area (Live Poultry their poultry in New York, and they sold it to
Code). In July 1934 the Schechters were retailers in New York. Because it was intended to
arrested and indicted on 60 counts of violating reach intrastate businesses such as Schechter
the Live Poultry Code. The INDICTMENT included Poultry, the Live Poultry Code regulated intrastate
charges that Schechter Poultry had failed to commerce, and it was, therefore, an unconstitu-
observe the MINIMUM WAGE and maximum hour tional exercise of congressional power. The Court
provisions applicable to workers and that it had reversed the Schechters’ convictions and declared
violated a provision of the Live Poultry Code the Live Poultry Code unconstitutional.
prohibiting the sale of unfit chickens. The case The Schechter decision was decided around
became popularly known as the Sick Chicken case. the same time as other, similar Supreme Court
The Schechters pleaded not guilty to the decisions striking down federal attempts to
charges. At trial, the Schechters were convicted address the economic crises of the Depression.
on 18 counts of violating the Live Poultry Code However, the Schechter decision was a particu-
and two counts of conspiring to violate the Live larly troublesome setback for the Roosevelt
Poultry Code. An appeals court affirmed their administration. The NIRA was the centerpiece
convictions, but the U.S. Supreme Court agreed of Roosevelt’s plan to stabilize the national
to hear their appeal. economy (the NEW DEAL), and the government’s
loss in the Sick Chicken case marked the end of
The Schechters presented several arguments the NIRA and its fair trade codes. Less than one
challenging the Live Poultry Code. According week after the Schechter decision was an-
to the Schechters, the code system of the nounced, Roosevelt publicly condemned the
NIRA was an unconstitutional ABDICATION of Court. Roosevelt declared that the Court’s
the legislative power vested in Congress by “horse-and-buggy definition of interstate com-
Article I, Section 1, of the U.S. Constitution. merce” was an obstacle to national health.
The Schechters argued further that their intra-
Roosevelt’s remarks were controversial be-
state wholesale business was not subject to
cause they appeared to cross the line that separated
congressional authority under the COMMERCE
the powers of the EXECUTIVE BRANCH from those of
CLAUSE of Article I, Section 8, Clause 3, of the
the judicial branch. They sparked a national debate
Constitution and that the procedures for
on the definition of interstate commerce, the role
enforcing the NIRA codes violated the DUE
of the U.S. Supreme Court, and the limits of
PROCESS CLAUSE of the FIFTH AMENDMENT.
federal power. Several citizens and federal legisla-
In support of the Live Poultry Code, the tors began to propose laws and constitutional
federal government argued that the code was amendments in an effort to change the makeup of
necessary for the good of the nation. According to the Supreme Court. At first, Roosevelt refused to
the government, the Live Poultry Code ensured back any of the plans, preferring instead to wait
the free flow of chickens in interstate commerce. and see if the Court would reconsider its stand and
This arrangement kept chicken prices low and reverse the Schechter holding. After the Supreme
helped ease, however slightly, the financial Court delivered another series of opinions in 1936
burden on the general public. The government that nullified New Deal legislation, Roosevelt
also argued that it was within the power of began to push for legislation that would modify
Congress to enact the NIRA regulatory scheme the makeup of the Court.
that gave rise to the Live Poultry Code because
In 1937, the Supreme Court began to issue
codes such as the Live Poultry Code applied only
decisions upholding New Deal legislation. In
to businesses engaged in interstate commerce.
NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1,
The Court unanimously disagreed with 57 S. Ct. 615, 81 L. Ed. 893 (1937), the Court
the federal government. Under the commerce held that the National Labor Relations Act did
14 SCHENCK V. UNITED STATES
not violate the commerce clause, finding that armed forces of the United States. Schenck, who
Congress has the power to regulate intrastate was the general secretary of the Socialist party in
activities that “have such a close and substantial the United States, had been indicted for mailing
relation to interstate commerce that their control antidraft leaflets to more than fifteen thousand
is essential or appropriate to protect that men in Philadelphia. The leaflets equated the draft
commerce from burdens and obstructions.” with SLAVERY, characterized conscripts as criminals,
and urged opposition to American involvement in
After Jones & Laughlin Steel Corp., the Court
WORLD WAR I.
seldom visited the FEDERALISM issues raised in
Schechter. However, the Court reviewed Schech- Schenck appealed his conviction to the
ter in United States v. Gomez, 514 U.S. 549, Supreme Court, which agreed to hear the case.
115 S. Ct. 1624, 131 L. Ed. 2d 626 (1995), Attorneys for Schenck challenged the constitu-
concluding that Congress could not enact a law tionality of the Espionage Act on First Amend-
prohibiting guns in school zones because ment grounds. FREEDOM OF SPEECH, Schenck’s
Congress had failed to make a connection attorneys argued, guarantees the liberty of all
between interstate commerce and the concerns Americans to voice their opinions about even
the most sensitive political issues, as long as
regarding guns near schools.
their speech does not incite immediate illegal
FURTHER READINGS action. Attorneys for the federal government
argued that freedom of speech does not include
Burns, James M. 1990. Crosswinds of Freedom: American
Experience. New York: Knopf.
the freedom to undermine the SELECTIVE SERVICE
Cohen, William, and Jonathan D. Varat. 2001. Constitu- SYSTEM by casting aspersions upon the draft.
tional Law: Cases and Materials. 8th ed. New York: In a 9–0 decision, the Supreme Court
Foundation Press. affirmed Schenck’s conviction. Justice OLIVER
Louchheim, Katie, ed. 1983. The Making of the New Deal: WENDELL HOLMES JR. delivered the opinion.
The Insiders Speak. Cambridge, MA: Harvard Univ.
Press.
Holmes observed that the constitutionality of
Pearse, Steven. 2010. “Accounting for the Lack of Account- all speech depends on the circumstances in
ability: The Great Depression Meets the Great Reces- which it is spoken. No reasonable interpretation
sion.” Hastings Constitutional Law Quarterly. Winter. of the First Amendment, Holmes said, protects
Schlesinger, Arthur M., Jr. 2003. The Age of Roosevelt: The utterances that have the effect of force. For
Coming of the New Deal. Boston: Houghton Mifflin.
example, Holmes opined that the Freedom of
Speech Clause would not protect a man who
CROSS REFERENCES
falsely shouts fire in a crowded theater.
Commerce Clause; Federalism.
“The question in every case,” Holmes wrote,
“is whether the words are used in such
SCHENCK V. UNITED STATES circumstances and are of such a nature as to
Schenck v. United States, 249 U.S. 47, 39 S. Ct. 247, create a clear and present danger that they will
63 L. Ed. 470 (1919), is a seminal case in bring about the substantive evils that Congress
CONSTITUTIONAL LAW, representing the first time has a right to prevent.” Holmes conceded that
that the U.S. Supreme Court heard a FIRST during peacetime Schenck’s vituperative leaflets
AMENDMENT challenge to a federal law on free might have received constitutional protection.
speech grounds. In upholding the constitutional- However, Holmes said, during times of war no
ity of the ESPIONAGE ACT OF 1917 (40 Stat. 217), the American has the right to speak or publish with
Supreme Court articulated the CLEAR AND PRESENT the intent of obstructing the CONSCRIPTION
DANGER doctrine, a test that still influences the process when such speech has a tendency to
manner in which state and federal courts decide incite others to this unlawful purpose.
free speech issues. This doctrine pioneered new The Supreme Court’s decision in Schenck
territory by drawing a line that separates protected established two fundamental principles of
speech, such as the public criticism of government constitutional law. First, Schenck established
and its policies, from unprotected speech, such as that the First Amendment is not absolute.
the advocacy of illegal action. Under certain circumstances, the rights pro-
On December 20, 1917, Charles Schenck was tected by the Freedom of Speech Clause must
convicted in federal district court for violating the give way to important countervailing interests.
Espionage Act, which prohibited individuals from Preserving the integrity of the military draft
obstructing military recruiting, hindering enlist- during wartime and protecting theater patrons
ment, or promoting insubordination among the from the perils of pandemonium are two
S C H L A F L Y, P H Y L L I S S T E W A R T 15
examples of countervailing interests that will

override First Amendment rights.
Second, Schenck established the standard by
which subversive and seditious political speech
would be measured under the First Amendment
for the next fifty years. Before the government may
punish someone who has published scurrilous
political material, the Court in Schenck said, it
must demonstrate that the material was published
with the intent or tendency to precipitate illegal
activity and that it created a clear and present
danger that such activity would result.
Schenck did not settle every aspect of free
speech JURISPRUDENCE. It left unresolved a
number of crucial questions and created
ambiguities that could only be clarified through
the judicial decision-making process. It was
unclear after Schenck, for example, how imme-
Rabban, David. 1983. “The Emergence of Modern First The 1919 Schenck
diate or probable a particular danger must be case marked the first
Amendment Doctrine.” University of Chicago Law
before it becomes clear and present. If Schenck Review 50 (fall). time the Court heard
permitted the government to regulate speech Russo, Charles J. 2007. “Supreme Court Update: The Free a First Amendment
that has an unlawful tendency, some observers Speech Rights of Students in the United States Post challenge to a federal
Morse v. Frederick.” Education and the Law 19 law on free speech
feared, Congress could ban speech that carried grounds. The Court
(September).
with it any harmful tendency without regard to was comprised of the
the intent of the speaker or the likely effect of following justices:
CROSS REFERENCES (standing, l-r)
the speech on the audience.
Communism; Dennis v. United States; Smith Act. Brandeis, Pitney,
In 1969 the Supreme Court articulated the McReynolds, Clarke,
modern clear-and-present-danger doctrine in (seated, l-r) Day,
Brandenburg v. Ohio, 395 U.S. 444, 89 S. Ct. v SCHLAFLY, PHYLLIS STEWART McKenna, White,
Holmes Van
1827, 23 L. Ed. 2d 430, stating that the The demise of the EQUAL RIGHTS AMENDMENT Devanter.
government may not forbid or punish subver- (ERA) on June 30, 1982, can be attributed in COLLECTION OF THE
sive speech except where it advocates or directs large part to Phyllis Stewart Schlafly. During the SUPREME COURT OF THE
imminent lawless action and is likely to incite or 1970s Schlafly was the United States’ most UNITED STATES.
produce such action. visible opponent of the ERA, a proposed
Under Brandenburg, courts must consider CONSTITUTIONAL AMENDMENT that she predicted
the intention of the speaker or writer, as well as would undermine the traditional family and
her ability to persuade and arouse others when actually diminish the rights of U.S. women.
evaluating the danger presented by particular The ERA stated, “Equality of rights under the
speech. Courts must also consider the suscep- law shall not be denied or abridged by the United
tibility of an audience to a particular form of States or by any State on account of sex.” After
expression, including the likelihood that cer- passing Congress, the amendment was sent to
tain members of the audience will be aroused the 50 states on March 22, 1972, for RATIFICATION.
to illegal action. Despite the reformulation of To become law, the amendment needed to be
the clear-and-present-danger test, Schenck passed by 38 states within seven years. By 1973,
retains constitutional vitality in cases concern- 30 states had already ratified the ERA. However,
ing the Freedom of Speech Clause, having as momentum for Schlafly’s anti-ERA campaign
been cited in more than 100 state and federal grew, the ratification process slowed. Only four
judicial opinions since the 1980s. states approved the ERA in 1974 and 1975, and it
became unlikely that pro-ERA forces could
FURTHER READINGS
persuade four more states to ratify it. In 1977
Alonso, Karen. 1999. Schenck v. United States: Restrictions on Indiana became the last state to ratify the
Free Speech. Springfield, N.J.: Enslow Publishers.
Dow, David R., and R. Scott Shieldes. 1998. “Rethinking the amendment. Despite a congressional reprieve in
Clear and Present Danger Test.” Indiana Law Journal 73 July 1978 that extended the ratification deadline
(fall). to June 30, 1982, the ERA failed.
16 SCHLAFLY, PHYLLIS STEWART
Phyllis Schlafly. In 1949 she married Fred Schlafly, also a

AP IMAGES lawyer. After moving to Alton, Illinois, Schlafly
and her husband became involved in anti-
Communist activities. Schlafly was a researcher
for Senator JOSEPH R. MCCARTHY during the
1950s and helped to found the Cardinal
Mindszenty Foundation, an organization op-
posed to COMMUNISM.
Schlafly supported Republican BARRY M.
GOLDWATER’s presidential campaign in 1964.
Her first book, A Choice Not an Echo, was
written in 1964 specifically for the Goldwater
campaign. Also in 1964 Schlafly published The
Gravediggers, a book accusing key figures in the
administration of President LYNDON B. JOHNSON
of deliberately undermining U.S. military
strength and leaving the country vulnerable to
Schlafly was born August 15, 1924, in St. Louis,
Communist aggression. Schlafly is the author of
to Odile Dodge Stewart and John Bruce Stewart.
several other books on political topics.
She excelled academically at her parochial school,
Academy of the Sacred Heart. After graduating as While raising six children, Schlafly kept her
VIRTUOUS WOMEN
class valedictorian in 1941, she enrolled at hand in community activities and Republican
ARE SELDOM
Maryville College of the Sacred Heart. As a junior, politics. Her interest in PUBLIC POLICY and
ACCOSTED BY government affairs prompted her to run for
she transferred to Washington University, in St.
UNWELCOME SEXUAL Louis, where she graduated Phi Beta Kappa in Congress three times: once in 1952 as the GOP
PROPOSITIONS . . . 1944. After receiving a scholarship, Schlafly earned candidate from the 24th District of Illinois; once
OBSCENE TALK OR a master’s degree in political science from Radcliffe in 1960 as a write-in candidate; and once in
College in 1945. In 1978, she returned to 1970 as the endorsed candidate of Chicago
PROFANE LANGUAGE.
Washington University and earned a law degree. insurance mogul W. Clement Stone. All three
—PHYLLIS SCHLAFLY
For about a year after receiving her master’s campaigns were unsuccessful.
degree, Schlafly worked in Washington, D.C., as Schlafly had more luck in her successful
a researcher for several members of Congress. 1964 bid to be elected the first vice president of
Returning to St. Louis in 1946, she became an the National FEDERATION of Republican Women.
aide and campaign worker for a Republican Her victory came at a time when Goldwater
representative, and then worked as a librarian Republicans dominated the party. Usually,
and researcher for a bank. the first vice president of the federation
Phyllis Stewart Schlafly 1924–

2004 The Supremacists published
1967 Formed The Eagles are Flying; began
publishing The Phyllis Schlafly Report 1972 Equal Rights Amendment passed by 2003 Feminist
Congress, sent to states; wrote first article Fantasies published
1964 A Choice Not an Echo and The Gravediggers in the Report criticizing the ERA
published; elected first vice president of the 2002 Campaigned
National Federation of Republican Women 1978 against U.S. adoption
Earned of the U.N.’s Convention on
1958 Helped found J.D. from the Elimination of All
1924 Born, 1945 Earned M.A. the Cardinal Washington Forms of Discrimination
St. Louis, Mo. from Radcliffe College Mindszenty Foundation University against Women
❖ ◆ ◆ ◆ ◆ ◆ ◆ ◆◆◆
▼
1925 1950 1975 2000

◆
1939–45 1950–53 1953–54 Senator 1961–73 1982 ERA defeated after
World War II Korean War McCarthy’s anti- Vietnam War failure to win ratification
Communist rhetoric by required 38 states
and investigations
reached their peak
S C H L E S I N G ER , R U D O L F BE R T HO L D 17
automatically advanced to president, but in 1967 true conservative, and she continues to express
Schlafly was opposed by a more moderate her disdain for the UNITED NATIONS. When the
candidate who ultimately defeated her. In the U.N. celebrated its 50th anniversary in 1995,
wake of her loss, Schlafly formed a separatist Schlafly referred to the event as “a cause for
group called The Eagles Are Flying. Bolstered by mourning, not celebration. It is a monument to
a core of conservative supporters, she began foolish hopes, embarrassing compromises,
publishing The Phyllis Schlafly Report, a monthly betrayal of our servicemen, and a steady stream
newsletter assessing current political issues and of insults to our nation. It is a Trojan Horse that
candidates, which was still in operation as of carries the enemy into our midst and lures
September 2009. In a 1972 issue of the Report, Americans to ride under alien insignia to fight
Schlafly wrote the first of many articles criticizing and die in faraway lands.”
the ERA. As her personal opposition to the
Journalist and noted feminist GLORIA STEINEM,
amendment grew, Schlafly formed Stop ERA and
among others, have noted the irony in Schlafly’s
the Eagle Forum, organizations supported by
role as an advocate for the full-time mother and
conservative U.S. citizens, fundamentalist reli-
wife, while being herself a lawyer, editor of a
gious groups, and factions of the John Birch
monthly newsletter, regular speaker at anti-
Society.
liberal rallies, and political activist. Schlafly
Schlafly argued that ratification of the ERA continues to fight any possible version of an
would lead to compulsory military service for all Equal Rights Amendment.
mothers, unisex toilets in public places, auto-
matic 50 percent financial responsibility for all FURTHER READINGS
wives, and homosexual marriages. In 1992 Caroll, Peter N. 1985. Famous in America: The Passion to
Schlafly’s oldest son John Schlafly disclosed his Succeed: Jane Fonda, George Wallace, Phyllis Schlafly,
homosexuality in an interview with the San John Glenn. New York: Dutton.
Eagle Forum Website. Available online at http://www.
Francisco Examiner. He stated that he supported
eagleforum.org (accessed September 16, 2009).
his mother’s conservative political views, but Felsenthal, Carol. 1981. Sweetheart of the Silent Majority.
also that gays and lesbians have family values. New York: Doubleday.
Schlafly, Phyllis. 2003. Feminist Fantasies. Dallas: Spence.
Schlafly’s passion for politics has always been Schlafly, Phyllis. 2004. The Supremacists: The Tyranny of
strong. Active in every Republican National Judges and How to Stop It. Dallas: Spence.
Convention since 1952, Schlafly served as an
elected delegate to eight conventions—1956, CROSS REFERENCES
1964, 1968, 1984, 1988, 1992, 1996, and 2004— Republican Party; Women’s Rights.
and as an elected alternate delegate to four others,
in 1960, 1980, 2000, and 2008.
v SCHLESINGER, RUDOLF BERTHOLD
Since the defeat of the ERA, Schlafly has Legal scholar, author, and professor, Rudolf B.
remained active in the Eagle Forum and with Schlesinger achieved fame for his ground-
other conservative causes, including the anti- breaking work in the study of international
abortion movement. She has made more than legal systems. Schlesinger was known as the
50 appearances before congressional and state dean of comparative law, a discipline that
legislative committees, where she has testified examines the differences and similarities among
on such issues as national defense, foreign the legal systems of nations. His arrival in the
policy, and family concerns. Her three-minute field during the early 1950s helped to give
radio commentaries, which she began in 1983, it both greater legitimacy and popularity in
are played five days per week on 500 stations, legal academia. Comparative Law: Cases-Texts-
and her radio talk show “Eagle Forum Live,” Materials (1950), written while Schlesinger
providing discussion on education since 1989, is taught at Cornell University, became a staple of
played every Saturday on 75 stations, as well as law school curricula and entered its fifth edition
on the Eagle Forum’s website. Schlafly also in the late 1990s. He also wrote important
continues her work as an author, public studies of CIVIL PROCEDURE and international
speaker, and commentator. business transactions and directed a ten-year
When Schlafly is critical of a person or international research project on contracts.
policy, she is quick to make it public. She did Born in Munich, Germany, in 1909, Rudolf
not consider President GEORGE W. BUSH to be a Berthold Schlesinger fled nazism before WORLD
18 SCHOOL DESEGREGATION
WHEN MEN RATHER WAR II to live in the United States. He had earned Schlesigner, Rudolf B., Hans W. Baade, and Peter E. Herzog.
his degree in law from the University of Munich 2001. Schlesigner, Baade, Herzog and Wise’s Comparative
THAN THE LAW
Law. Eagan, MN: West.
GOVERN, PEOPLE
in 1933. He developed a background in finance Winship, Peter. 1996. “As the World Turns: Revisiting
while working in a Munich bank, where he Rudolf Schlesinger’s Study of the Uniform Commercial
USUALLY FIND IT
helped German Jews transfer their assets out of Code ‘In the Light of Comparative Law’.” Loyola of Los
MORE PRUDENT TO
the country in order to escape persecution. In Angeles Law Review 29 (April).
SEEK A POWERFUL 1938, with the Nazi party gaining strength,
HUMAN PROTECTOR Schlesinger emigrated to New York and promptly
SCHOOL DESEGREGATION
THAN TO STAND ON enrolled at Columbia Law School, where he
The attempt to end the practice of separating
LEGAL RIGHTS
earned his degree in 1942. He briefly practiced
children of different races into distinct public
financial law, then served as a professor at Cornell
AGAINST THE STATE. schools.
from 1948 to 1975. Upon retirement from
—RUDOLF B. Cornell, he joined the faculty of the Hastings Beginning with the landmark U.S. SUPREME
SCHLESINGER College of Law at the University of California. COURT case of BROWN V. BOARD OF EDUCATION OF
TOPEKA, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873
Schlesinger had an enormous impact on
(1954), the United States’ legal system has sought
U.S. and European legal studies. Foremost was
to address the problem of racial SEGREGATION, or
his pioneering 1950 book on comparative law,
separation, in public schools. In Brown, a
which ultimately influenced two generations of
unanimous Supreme Court found that segregat-
readers. In 1955, working on behalf of the New
ing children of different races in distinct schools
York Law Revision Commission, he examined
violates the EQUAL PROTECTION Clause of the
the important question of whether to codify
FOURTEENTH AMENDMENT, which guarantees that
COMMERCIAL LAW. His study, Problems of Codifi-
“[n]o state shall . . . deny to any person . . . the
cation of Commercial Law (1955), anticipated
equal protection of the laws” (§ 1). In writing the
the subsequent development of the UNIFORM
Court’s opinion, Chief Justice EARL WARREN
COMMERCIAL CODE. In 1995, the American Journal
stressed the crucial role that education plays in
of Comparative Law published a tribute to
socializing children, and he maintained that racial
Schlesinger that praised his “heroic work” and
segregation “generates a feeling of inferiority” in
noted that its influence went beyond U.S. law:
children that will limit their opportunities in life.
“Today’s serious efforts to find and develop a
A related decision, Brown v. Board of Education,
unitary European private law is, consciously or
349 U.S. 294, 75 S. Ct. 753, 99 L. Ed. 1083 (1955),
unconsciously, a continuation of Schlesinger’s
(Brown II), empowered lower courts to supervise
effort.” Schlesinger died on November 10,
desegregation in local school districts and held
1996, in San Francisco, when he and his wife
that desegregation must proceed “with all
committed suicide.
deliberate speed.”
FURTHER READINGS A number of Supreme Court decisions in
Buxbaum, Richard M. 1995. “Rudolf B. Schlesinger—A the decades since Brown have further defined
Tribute.” American Journal of Comparative Law 43 the constitutional claims regarding desegrega-
(summer). tion first set forth in Brown. In many cases,
Rudolf Berthold Schlesinger 1909–1996
1942–43 Clerked for Irving Lehman of the N.Y. Court of Appeals

1942 Earned LL.B. from Columbia Law School
1950 Comparative Law: Cases-Texts-Materials first published
1938 Immigrated to United States
1955 Problems
1909 Born, 1933 Earned Dr. Jur. of Codification 1996 Died,
Munich, from University of of Commercial 1948–75 Taught at 1975–94 Taught at San Francisco,
Germany Munich Law published Cornell Law School Hastings College of Law Calif.
❖ ◆ ◆ ◆ ◆ ◆ ❖
▼
1900 1925 1950 1975 2000
1914–18 1939–45 1950–53 1961–73

World War I World War II Korean War Vietnam War
SCHOOL DESEGREGATION 19
these decisions have resulted in court-imposed Marshall’s statement proved to be wildly

desegregation plans, sometimes involving con- optimistic. By 1964, ten years after Brown, a
troversial provisions for busing students to Department of Health, Education, and Welfare
schools outside their immediate neighborhood. (HEW) study indicated that only 2.4 percent of
Despite such judicial actions, desegregation in African Americans in the South were attending
the United States achieved mixed success. largely white schools. Such statistics indicated
Although many more children attend school that Brown had led to only token INTEGRATION.
with children of other races now than in 1954, By the mid-1960s many observers felt that the
in numerous cities racial segregation in educa- Supreme Court, and the United States as a whole,
tion remains as high as ever. Faced with the had lost an opportunity to create a desegregated
challenges of shifting populations, segregated society more quickly. DE FACTO segregation
housing patterns, impatient courts, and the (segregation in fact or actuality)—as opposed to
stubborn persistence of racism, comprehen- DE JURE segregation (segregation by law)—
sive school desegregation—long a hoped-for remained a stubborn reality, and racism
remedy to past DISCRIMINATION against African remained its leading cause. Whites who did not
Americans—remains an elusive goal. want their children attending school with chil-
dren of another race found many ways to avoid
1954–1970: School Desegregation
desegregation, from gerrymandering school
after Brown
boundaries (adjusting school boundaries to their
Brown and Brown II inspired a great deal of advantage) to manipulating school transportation
hope that the races would soon be joined in and construction policies. And in a phenomenon
public schools and that the United States would dubbed white flight, many transferred their
take a giant step toward healing the racial children to private schools or simply moved to
animosities of its past. THURGOOD MARSHALL, an suburbs where few, if any, nonwhites lived.
African American who led the National Associ-
ation for the Advancement of Colored People’s Congress joined the Supreme Court in its
Legal Defense Fund in its challenge to school efforts to assist desegregation, by passing the
segregation in Brown and later became a justice CIVIL RIGHTS Act of 1964 (28 U.S.C.A. § 1447, 42
of the Supreme Court, predicted that after U.S.C.A. §§ 1971, 1975a to 1975d, 2000a to
Brown, schools would be completely desegre- 2000h-6). Among its many features, the act
gated within six months. authorized HEW to create specific guidelines
Public School Enrollment, by Race/Ethnicity, 1968 to 2006
White Black Latino

40
34.7
35
30 29.2 28.5 29.1 28.9 28.5

Enrollment (in millions)
25
20
15
10.5
10 7.7 7.9 8.3
6.3 6.4 7.1 6.4 6.9
5.6
5 3.2
2.0
0
1968 1980 1994 1996 1998 2006 ILLUSTRATION BY GGS
Year CREATIVE RESOURCES.
REPRODUCED BY
SOURCE: Harvard University, The Civil Rights Project,
A Multiracial Society with Segregated Schools: Are We Losing the PERMISSION OF GALE,
Dream? 2003, and the U.S. Census Bureau, Statistical Abstract of the United States: 2009. A PART OF CENGAGE
LEARNING.
The Busing Debate

B using is a plan for promoting
school desegregation, by which
minority students are transported to
Education (402 U.S. 1, 91 S. Ct. 1267, 28 L.
Ed. 2d 554 [1971]), the SUPREME COURT
established that federal courts could require
feature—if many times a limited one—
of most school desegregation programs
and continued to inspire heated debate.
largely white schools and white students school districts to implement busing pro- Those who are in favor of busing
are brought to largely minority schools. grams as a means of achieving racial claim, as did the Supreme Court in Green
It is intended to safeguard the CIVIL RIGHTS INTEGRATION of public schools. and Swann, that racial integration in and
of students and to provide equal oppor- However, busing was nothing new in of itself is a worthy social goal and that
tunity in public education. Busing is also U.S. education. Even before these deci- busing is an effective means of achieving
an example of AFFIRMATIVE ACTION, that is, sions, nearly 40 percent of the nation’s that goal in public education. Supporters
the attempt to undo or compensate for schoolchildren were bused to school. point to the harmful legacy of segrega-
the effects of past DISCRIMINATION. Such Indeed, before 1954, when the Court tion in education. Before Brown, African
action is sometimes called compensatory declared racial segregation in public American children were schooled in
justice. Though busing was a common schools unconstitutional in BROWN V. separate facilities that were usually infe-
practice in the 1970s and 1980s, school BOARD OF EDUCATION (347 U.S. 483, 74 S. rior to the facilities used by whites,
districts have steadily abandoned the use Ct. 686, 98 L. Ed. 873), children were despite official claims that they were
of busing as a remedy for desegregation. often bused to segregated schools that equal. Such segregation worked to keep
Busing was first enacted as part of were beyond walking distance from their African Americans at a disadvantage in
school desegregation programs in response homes. relation to whites. It instilled feelings of
to federal court decisions establishing that With the Supreme Court decisions in inferiority in African American children
racial SEGREGATION of public schools violates Green and Swann, busing became one of and seriously diminished their educa-
the EQUAL PROTECTION clause of the FOUR- the most controversial topics in U.S. law tional achievement and opportunities.
TEENTH AMENDMENT to the Constitution. In and politics, particularly in the 1970s. Supporters of busing also often claim
Green v. County School Board (391 U.S. 430, Although the zeal for busing as a remedy that DE FACTO (actual) segregation exists
88 S. Ct. 1689, 20 L. Ed. 2d 716 [1968]) and for past racial injustice had waned greatly even decades after the CIVIL RIGHTS
Swann v. Charlotte-Mecklenburg Board of by the 1990s, busing remained a MOVEMENT and the striking down of racial
with which to measure the progress of school 372 F.2d 836 (5th Cir. 1966), he wrote, “[T]he
desegregation. In 1966, for example, these guide- only adequate redress for a previously overt
lines called for specific levels of integration: 16 to system-wide policy of segregation directed
18 percent of African American children in all against Negroes as a collective entity is a
school districts must be attending predominantly system-wide policy of integration.” Wisdom’s
white schools. The act also allowed HEW to cut ruling also detailed measures that the school
off federal funding to school districts that did not district must take toward the goal of integration,
meet integration guidelines. However, this pun- including deciding how children were to be
ishment proved difficult to use as a means of informed of the schools available to them for
enforcement. attendance, where new schools must be con-
In the mid-1960s a judge on the U.S. Court structed, where transportation routes must run,
of Appeals for the Fifth Circuit, JOHN MINOR and how faculty and staff were to be hired and
WISDOM, issued a number of influential opinions assigned.
that strengthened the cause of racial integration In 1968 the Supreme Court again addressed
of schools. Wisdom’s rulings established that it the issue of school desegregation, in Green v.
was not enough simply to end segregation; County School Board, 391 U.S. 430, 88 S. Ct.
Instead, school districts must actively imple- 1689, 20 L. Ed. 2d 716, which concerned the
ment desegregation. In one of these cases, schools of New Kent County, a rural area in
United States v. Jefferson Board of Education, eastern Virginia. In its opinion the Court
segregation laws, which occurred in the creation of a permanent underclass in L. Ed. 2d 548 [1973]). In Keyes, he wrote
1960s. A largely white, wealthy upper the United States. that in an era of declining student
class and a largely minority, poor under- Supporters of busing also maintain achievement, it is wrong to turn the
class, they argue, are transported, that it is an affordable way to achieve attention of communities “from the
employed, housed, and educated in differ- school desegregation. While admitting paramount goal of quality in education
ent settings. Often wealthy people live in that the initial start-up costs of a busing to a perennially divisive debate over who
the suburbs, and the poor live in the cities. program can be large, they point to is to be transported where.”
Growing up in their separate neighbor- statistics that indicate the operating costs
hoods, children from higher socioeco- Critics also claim that busing causes
of compulsory busing are generally less white flight—meaning whites move their
nomic levels thus have many advantages than 5 percent of a school district’s entire
that poorer children do not: more space at children from integrated public schools
budget. to private and suburban schools that are
home, better nutrition and health care,
greater cultural and intellectual stimula- Those who oppose busing make a largely white—which results in an even
tion, and friends and acquaintances with variety of different points against it, greater disparity between white and
higher social status providing better job although they do not necessarily oppose black, rich and poor. According to this
and career prospects. Some even compare integration itself. Opponents claim that scenario, busing only exacerbates the
the isolation of impoverished minorities in busing serves as a distraction from more current situation, making public schools
U.S. inner cities with that of impoverished important educational goals such as and cities even more the exclusive
blacks under South Africa’s former apart- quality of instruction. Busing, they hold, province of the poor.
heid system. too easily becomes a case of form over Some noted experts on the issue of
Advocates of desegregation through substance, in which the form of racial busing have concluded that although
busing assert that these existing in- integration of education becomes of they favor a society that is racially
equalities must not become greater and greater value than the substance of what integrated, the social costs of busing
that desegregation in education can go a is actually taught in schools. Critics of and the resulting white flight are too
long way toward ending them and busing would rather focus on the envi- high. Others have sought a middle
creating a more just society. They also ronment in a school and in its class- ground on the issue by arguing that
point out that U.S. education has his- rooms than on achieving a particular judges should choose carefully the dis-
torically worked to ensure a society in number of each race in a school. Justice tricts in which they decide to implement
which class hierarchy is minimized and Lewis F. Powell Jr. echoed these senti- busing. For example, they claim that
social mobility—both upward and ments in an opinion to the school white flight is more likely to occur in
downward—is maximized. Busing, they desegregation case Keyes v. Denver School communities and schools where whites
argue, can, therefore, help avoid the District (413 U.S. 189, 93 S. Ct. 2686, 37 form a small minority and that, as a
acknowledged that the integration guidelines set remain a part of the school desegregation debate. A
forth in Brown II had not produced adequate dual school system is a segregated school system.
results. School districts such as those of New In other words, it consists of separate segments—
Kent County—where in 1967, 85 percent of black one black, the other white—existing side by side
children still attended an all-black school—had but with widely different educational conditions
avoided meaningful integration. It was not and outcomes. The Court in Green identified six
enough, the Court stated, to simply end segrega- indicators of a dual system: racial separation of
tion and allow a “freedom-of-choice” plan—by students, faculty, staff, transportation, extracur-
which African American children supposedly had ricular activities, and facilities. A unitary school
the freedom to attend predominantly white system, on the other hand, is racially integrated at
schools—to be the only means of combining every level. In a later ruling, Alexander v. Holmes
the races in an educational setting. During the County Board of Education, 396 U.S. 19, 90 S. Ct.
oral argument of the case, Chief Justice Warren 29, 24 L. Ed. 2d 19 (1969), the Court described a
noted that although the “fence” of outright unitary system as one “within which no person is
segregation had been taken down, socially to be effectively excluded from any school because
constructed “booby traps” still prevented most of race or color.”
children from attending integrated schools. Even more important, in its opinion in
Green also introduced two concepts—dual Green, the Court held that New Kent County
school systems and unitary school systems—that would be expected to immediately begin
The Busing Debate

(Continued)
result, busing has higher social costs in forced to purchase new buses in order to have a greater influence on their child’s
such districts. start a busing program. In financially education by making it easier, for exam-
Another prominent complaint in the strapped school districts, spending on ple, to visit the school and speak with a
anti-busing opinion is that court-ordered busing sometimes takes away funding for teacher. Such schools also give children a
busing programs represent an abuse of other educational priorities. sense of identity and instill pride in their
judicial power. According to this view, Some of those who oppose busing community. Busing children to a school
busing is an example of undesirable favor racial desegregation but do not across town, they argue, cannot inspire
judicial activism. The large-scale social view busing as a good way to achieve that pride in their school. Advocates of neigh-
changes caused by transporting thousands goal. Instead, they support a gradualist borhood schools also point to statistics
of children many miles each day should approach to social reform. According to that indicate that bused students are more
be imposed only by an elected body of the gradualist view, it will take genera- alienated from their school and thus
representatives such as a state legislature tions to achieve the goal of racial experience greater problems, including
or Congress. Moreover, adherents of this desegregation in education and in society poorer academic performance and in-
view argue that supervising school deseg- as a whole. Busing only interferes with creased delinquency.
regation programs only bogs down the the overall goal of integration, because of An even more fundamental question
courts and takes time away from other the sudden and disruptive changes, related to busing is whether racial
pressing legal matters. including white flight, which it imposes integration is in itself a valuable goal
Critics of busing also point out that on society. for public schools. Those who take
many times the same court that requires Others oppose busing on the ground opposite sides on this question marshal
busing does not provide guidance as to that neighborhood schools are the best different sociological evidence. In the
funding it, thereby creating financial way to educate children. In this camp are 1950s and 1960s, the Supreme Court was
headaches for school districts. Related to both those in favor of racial integration in influenced by the “contact” theory of
this issue is the claim that busing is too education and those against it. Neighbor- racial integration. According to this
costly, especially when school districts are hood schools, it is argued, allow parents to theory, the better one knows those of
remedying the lasting effects of segregation. In a footnote to its opinion, the Court
“The burden on a school board today,” the advanced suggestions for achieving school
Court said, “is to come forward with a plan that desegregation, including combining all children
promises realistically to work, and promises in a particular age range, white and black, into
realistically to work now” (Green). Thus, the the same building.
Court abandoned its previous position that
school desegregation must proceed “with all Green and subsequent judicial decisions
deliberate speed” in favor of a call for immedi- through 1970 caused a remarkable change in
ate and prompt action. school desegregation. By 1971 HEW statistics
indicated that the South had become the most
The Court also held that the Fourteenth
racially integrated region in the United States.
Amendment required action to remedy past
HEW estimated that 44 percent of African
racial discrimination—or what has come to be
called “affirmative action.” It found an “affir- American students attended majority-white
mative duty to take whatever steps might be schools in the South, as compared to 28 percent
necessary to convert to a unitary system in which in the North and West. In many communities,
racial discrimination would be eliminated root however, these changes resulted in white flight.
and branch” (Green). Moreover, school boards In Mississippi, for example, white public school
would have to provide meaningful statistical enrollment dropped between 25 and 100
evidence that their school district was moving percent in the 30 school districts with the
toward the goal of integration. highest black enrollment.
another race, the more one is able to get programs were more effective than rapidly resegregated. The Boston public
along with them. Sociologists reasoned, government-imposed plans in achieving schools, which had endured years of
therefore, that integrated schools would school desegregation. Others went so far conflict over busing, ended race-based
increase understanding between the races as to claim that integration only increases admissions and its busing program in
and lower racial tensions. hostility and tensions between the races. 1999. Even cities such as Seattle, which
In the same years, many studies African American students who are voluntarily adopted a busing program in
claimed to show that racial integration bused, they argued, experience a decline the 1970s, abandoned the practice in
would boost the self-esteem, academic in their educational achievement in 1999. The trend continued into the new
achievement, and ultimately the opportu- school. Some studies have shown that century, as school districts also faced
nities and choices of members of minori- students who are bused grow more financial challenges. The costs associated
ties. For example, a well-known report rather than less hostile toward the other with busing led some districts to phase
issued by sociologist James S. Coleman in race or races. In addition, some studies out busing, while other districts returned
1966, Equality of Educational Opportunity, have indicated that in many schools to neighborhood elementary and middle
concluded that minority children improve where the desired percentages of races schools.
their academic performance when they have been achieved through busing,
attend classes where middle-class white students interact largely with those of FURTHER READINGS
pupils are the majority. Coleman’s report their own race and thus segregation
Coyle, Marcia. 2001. “Court Hears Key Busing
also claimed that the most important within the school prevents true desegre-
Case; Charlotte, N.C., Schools Try to
indicator of the academic performance of gation.
Remain under Supervision.” National
minority and lower-class students is the By 2009 the anti-busing viewpoint Law Journal (March 12).
educational level of their classmates. The had clearly prevailed. During the 1990s Douglas, Davison M., ed. 1994. School Busing:
report was seized upon by many as a federal courts released many school Constitutional and Political Developments.
reason to institute court-imposed busing districts from supervision by declaring New York: Garland.
plans for school districts. Kluger, Richard. 1974. Simple Justice. New
these districts free of the taint of state-
York: Knopf.
By the 1970s and later, other sociol- imposed segregation. The 1999 release of Schwartz, Bernard. 1986. Swann's Way: The
ogists challenged the theories that school the Charlotte-Mecklenburg district from School Busing Case and the Supreme
desegregation would lead to greater racial court supervision was a symbolic mo- Court. New York: Oxford Univ. Press.
harmony and improved academic per- ment, marking the end of an almost 30-
formance by African Americans. Cole- year experiment in which the courts used
man, too, became more skeptical about busing to attempt the desegregation of CROSS REFERENCE
busing and argued that voluntary public schools. By 2009, the district had Civil Rights Movement.
The 1970s: Swann and Busing Mecklenburg School District, in North Carolina,
In SWANN V. CHARLOTTE-MECKLENBURG BOARD OF a district in which African Americans made up
EDUCATION, 402 U.S. 1, 91 S. Ct. 1267, 28 L. Ed. 29 percent of the student body. After the
2d 554 (1971), the focus of school desegregation Supreme Court’s decision in Green, a federal
shifted from largely rural school districts to urban district judge ruled that the school district had
ones, a change of scene that offered new not achieved adequate levels of integration:
challenges to desegregation. In the rural South 14,000 of the 24,000 African American students
before the Brown decision, blacks and whites still attended schools that were all black, and
lived largely in the same communities or areas, most of the 24,000 did not have any white
and requiring that their children attend the same teachers. The judge called for the adoption of a
neighborhood schools could resolve segregation. desegregation plan that involved busing 13,300
In urban settings, however, blacks and whites additional children at an initial start-up cost of
lived in different neighborhoods, so combining over $1 million.
the two races in the same schools meant The Supreme Court upheld the district
transporting children, usually by bus, to institu- court’s plans. Just as in Brown II, it gave school
tions that were often far from their homes. authorities and district judges primary respon-
In Swann, the Court took the final step sibility for school desegregation. This time,
toward making busing a part of school de- however, the Court provided more guidance.
segregation plans, by giving the lower courts To create desegregated schools, it encouraged
power to impose it as a means for achieving faculty reassignment; the redrawing of school
integration. Swann involved the Charlotte- attendance zones; and an optional, publicly
Based on the Court's could bus suburban pupils to desegregate

decision in Swann, inner-city schools. The case involved federal
courts ordered busing
in many city school
district judge Stephen Roth’s decision to join
districts to achieve the Detroit School District with 53 of the city’s
desegregation during 85 outlying suburbs in a desegregation decree.
the 1970s. Here, a The proposed plan would have created a
policeman stands
guard as African
metropolitan school district with 780,000 stu-
American students dents, of whom 310,000 would be bused daily to
board a bus outside achieve desegregation goals. The shocked white
South Boston High community, much like others in the South, and
School in September
1974. its elected representatives denounced the plan.
AP IMAGES Detroit reflected the situation of many U.S.
cities. Although African Americans made up
only 23 percent of the city’s population in 1970,
they constituted 61 percent of its school-age
population. Whites were underrepresented in
the inner-city public schools for various rea-
sons. Young white married couples, who
constituted the demographic group most likely
to have school-age children, were also the most
likely to move to the suburbs. The whites who
did live in the cities tended to be older people,
singles, and childless couples. Urban whites who
did have school-age children often sent them to
funded transfer program for minority students. private schools.
Most importantly, the Court recommended Such a situation caused Judge Roth to ask
mandatory busing to achieve desegregation. It the question, “How do you desegregate a black
did note that busing could be excessive when it city, or a black school system?” (Milliken).
involved especially great distances. It also hinted Busing within city limits alone would still leave
at an end to court-imposed desegregation plans, many schools 75 to 90 percent black. The only
stating, “Neither school authorities nor district solution was one that took into consideration
courts are constitutionally required to make the entire metropolitan area of Detroit by
year-by-year adjustments of the racial composi- joining the city school district with the sur-
tion of student bodies” (Brown II). In court rounding suburban school districts.
decisions decades later, these words would be
In support of this position, Judge Roth
cited in support of ending court-supervised
argued that a variety of causes had led to the
school-desegregation programs.
concentration of blacks in ghettos. Govern-
As a result of Swann, throughout the 1970s, ments, he wrote in his opinion, “at all levels,
courts ordered busing to achieve desegregation federal, state and local, have combined,
in many city school districts, including Boston, with . . . private organizations, such as loaning
Cleveland, Indianapolis, and Los Angeles. institutions and REAL ESTATE associations and
However, Swann was one of the last desegrega- brokerage firms, to establish . . . residential seg-
tion opinions in which all nine justices were in regation throughout the Detroit metropolitan
complete agreement. The Court’s unanimity on area” (Bradley). Residential segregation had
the issue of school desegregation, which had resulted from a whole variety of types of
been the rule in every decision since Brown, discrimination that caused African Americans
broke down in the next major case, Milliken v. and members of other minorities to live in
Bradley, 418 U.S. 717, 94 S. Ct. 3112, 41 L. Ed. segregated neighborhoods and, as a result,
2d 1069 (1974). attend segregated schools. Thus, Roth framed
Milliken shifted the scene of school de- his metropolitan school-desegregation plan as a
segregation from the South to the North— remedy for past discriminatory conduct.
specifically, to Detroit. In Milliken, the Supreme Judge Roth’s plan promised to promote
Court addressed the issue of whether courts class as well as racial interaction, complicating
still further the issue of desegregation. Mixing of been begun in Los Angeles in 1978 was ended in
the different classes of U.S. society became as 1981 through a statewide REFERENDUM that
much a goal of desegregation decrees as did banned compulsory busing except in districts
mixing of different races. Such a plan, its where there had been deliberate segregation. By
proponents argued, might also remedy the the late 1980s and 1990s the Supreme Court,
funding inequities among different school now having the influence of more conservative
districts and even end white flight. justices appointed by Republican presidents
In 1974, by a vote of 5–4, the Supreme RONALD REAGAN and GEORGE H. W. BUSH, estab-
Court ruled in Milliken that Judge Roth had lished that court-ordered desegregation
wrongly included the suburbs with the city in decrees, including busing plans, could end
his desegregation decree. The district court’s short of specific statistical goals of
plan, the Court held, could only be justified if integration when everything “practicable” had
de jure segregation existed in outlying suburbs; been done to eliminate the vestiges of past
remedies to past discriminatory conduct must discrimination.
be limited to Detroit, because it was the only Two court decisions in the early 1990s—
district that had such policies. Disagreeing with Board of Education v. Dowell, 498 U.S. 237, 111 S.
Roth, the Court also held that state housing Ct. 630, 112 L. Ed. 2d 715 (1991), which involved
practices were not relevant to the case. Writing the Oklahoma City School District, and Freeman
the Court’s opinion, Chief Justice WARREN E. v. Pitts, 503 U.S. 467, 112 S. Ct. 1430, 118 L. Ed.
BURGER argued for local control of school 2d 108 (1992), which covered the schools of
districts, over court control: “No single tradi- DeKalb County, Georgia—addressed the manner
tion in public education is more deeply rooted in which court supervision of school districts and
than local control over the operation of schools; their desegregation programs might end. In
local autonomy has long been thought essential Freeman, the Court identified three factors that
both to the maintenance of community concern may be used in such determinations: (1) whether
and support for public schools and to the the school system has complied with the
quality of the educational process.” desegregation decree’s provisions, (2) whether
Many saw the Milliken decision as the first continued judicial control is necessary or practi-
Supreme Court defeat for the cause of school cable to achieve compliance with any aspect of
desegregation. Some, including Justice Marshall, the decree, and (3) whether the school system has
the first African American to sit on the Court, demonstrated to the once-disfavored race its
interpreted Milliken as an abandonment of the GOOD FAITH commitment to the whole of the
cause of racial justice. “Today’s holding, . . . ” decree. Ultimately, the school system must be
Marshall wrote in his dissenting opinion, “is held to have engaged in a good faith effort to
more a reflection of a perceived public mood comply with any judicially supervised desegrega-
that we have gone far enough in enforcing the tion program, and to have eliminated, to the
Constitution’s guarantee of equal justice than it extent practicable, any vestiges of discrimination.
is the product of neutral principles of law.” Freeman also established that courts may end
Supporters of the decision, however, pointed desegregation decrees in incremental stages,
to the myriad potential problems a plan like gradually returning administrative functions and
Roth’s might impose, including greater bureau- decisions to local authorities.
cratic red tape, more white flight, and even In another case—Missouri v. Jenkins, 515
greater racial tensions. U.S. 70, 115 S. Ct. 2038, 132 L. Ed. 2d 63
(1995), which concerned the Kansas City
The 1980s and After (Missouri) School District—the Court stopped
In the 1980s the attitude of the public and of just short of ending judicial supervision of
the courts toward activist school-desegregation desegregation programs. However, the decision
programs—and toward other forms of AFFIRMA- did strike down two requirements imposed by a
TIVE ACTION, for that matter—became more district court on the state of Missouri, declaring
skeptical and sometimes even hostile. Courts them outside that court’s authority. Those two
began to require that busing, for example, be requirements would have attempted to improve
used as a remedy only in school districts where the “desegregative attractiveness”—in this case,
there had been “deliberate” or “intentional” the ability to attract white students from the
segregation. A large busing program that had suburban school districts—of the school district
by requiring the state to fund salary increases desegregation on the state rather than federal
for all staff in the school district, as well as level. Some state constitutions, they pointed
“quality education” programs, including mag- out, contain language more conducive to their
net schools. Such “interdistrict” remedies, the cause. Connecticut’s constitution, for example,
Court held, are beyond the scope of the district declares that no person “shall . . . be subjected
court. The Court, citing Milliken, disagreed with to segregation” (Conn. Const. art. 1, § 20),
the contention that white flight justifies an and Minnesota’s requires that all students be
interdistrict remedy to segregation. The Court given an adequate education. Lawsuits based
also rejected student test scores as evidence for on state constitutions have met with mixed
determining whether a school district has success, prevailing in Connecticut but failing in
adequately responded to judicial desegregation Minnesota.
decrees. By 2009 most school districts had been
Those who supported these decisions saw released from federal court supervision. In
them as returning to local authorities their addition, school districts had abandoned busing
proper control over their schools. They also saw to achieve desegregation. The Minneapolis
these decisions as guiding the courts back to a school district, which has a predominantly
more proper and limited social role. The courts, non-white student population, dropped busing
they argued, should not be engaged in programs in the late 1990s, opting instead to emphasize
of “social engineering.” Others, both black and
strong neighborhood schools. The Charlotte-
white, simply abandoned desegregation as a goal
Mecklenburg school district, which was at the
and instead focused on improving neighbor-
center of the school busing controversy, ended
hood schools, even when those schools remain
largely segregated. its busing program after a federal judge ended
supervision in 1999.
Critics of these decisions have seen them as a
step backward for the civil rights of minorities in In 2007 the Supreme Court all but closed
the United States. Such decisions, they argued, the door on efforts by school districts to
merely perpetuated racism by returning school desegregate schools through placement policies.
districts to those who often do not share the goal In Parents Involved in Community Schools v.
of creating racially integrated public schools. Seattle School District No. 1, 551 U.S. 701, 127 S.
Others have argued that the changing pattern in Ct. 2738, 168 L.Ed.2d 508 (2007), the Court
the judicial response to desegregation has been issued a landmark ruling that struck down the
caused by the legal system’s exhaustion and desegregation guidelines used by the Seattle,
impatience in the face of complex and protracted Washington, and Louisville, Kentucky, school
desegregation plans. Accustomed to seeing more districts, finding that such plans violated the
rapid results, district courts, according to this Equal Protection Clause of the Fourteenth
argument, have been eager to return the control Amendment. The Court stated that the plans
of school districts to local authorities.
were “directed only to racial balance, pure and
Others have argued that the Supreme Court simple,” and that the “way to stop discrimina-
decisions on school desegregation have ignored tion on the basis of race is to stop discriminat-
the effect of discriminatory housing patterns. ing on the basis of race.” It made no difference
They have maintained that without a change in if the school districts had worthy goals in mind
segregated housing patterns, desegregation,
if they were “free to discriminate on the basis of
whether in schools or in the larger society,
race to achieve it.”
cannot be achieved. They claim that by ignoring
housing as an issue, the Supreme Court enabled Though four justices voted to end the use of
white America to escape its responsibilities in race in public education to promote diversity,
creating the urban ghetto. Justice ANTHONY KENNEDY issued a separate
Still others have argued that school desegre- opinion that said that race could still be taken
gation can yet be achieved through the court into account if the programs were more
system, maintaining that social change of the narrowly tailored. The dissenting four justices
kind required for true desegregation will take countered that the majority had made a
many years. In the mid-1990s, organizations disastrous decision that would unsettle decades
such as the AMERICAN CIVIL LIBERTIES UNION began of decisions that sought to prevent the resegre-
to focus on making the case for school gation of public schools.
S C H O O L S AN D S C H O O L D I S T R I C T S 27
FURTHER READINGS construction and maintenance of educational

Clotfelter, Charles. 2006. After “Brown”: The Rise and Retreat buildings and facilities in the district. School
of School Desegregation. Princeton: Princeton Univ. districts may, in turn, delegate some of their
Press. powers to individual schools.
Kluger, Richard. 2004. Simple Justice. Rev. ed. New York:
Knopf. State and federal revenues pay for only
Kozol, Jonathon. 2006. The Shame of the Nation: The about half of all educational costs. The rest of
Restoration of Apartheid Schooling in America. New the burden for construction, maintenance, and
York: Three Rivers Press.
improvement of school facilities, salaries, and
Orfield, Gary, and Eaton, Susan. 1997. Dismantling
Desegregation: The Quiet Reversal of Brown v. Board of other educational costs is borne by local
Education. New York: New Press. government. Most states give school districts
Whitman, Mark, ed. 1997. The Irony of Desegregation Law, the power to levy local taxes for educational
1955–1995: Essays and Documents. Princeton, N.J.: M. purposes. This taxing power is limited by the
Wiener.
state legislature. If a school district wants to
CROSS REFERENCES raise taxes beyond what the legislature allows, it
Civil Rights Movement; Equal Protection; Schools and may seek approval from the voters in the district
School Districts. in a REFERENDUM or proposition vote.
Most state legislatures require that school
SCHOOL PRAYER districts be governed by a school board, board of
See ENGEL V. VITALE; RELIGION. education, or similar body. School boards govern
the school district’s actions and can also take
SCHOOLS AND SCHOOL DISTRICTS action on their own. School boards appoint
A school district encompasses a specific geographi- superintendents, review important decisions
cal area with defined boundaries. In most areas, made by the district’s administrators, and fashion
the head of the school district is called the educational policies for the district. Most school
superintendent. Each school district contains at boards comprise several members elected by
least one school. Typically, a school district voters who live within the boundaries of the
includes primary schools, also called grade schools, district. In some states, school board members
middle or junior high schools, and high schools. A may be appointed by a state or local governing
school district’s boundaries may be the same as the body or a designated government official.
boundaries of a city. Multiple school districts may School boards hold regular meetings that are
exist within larger cities, and in rural areas, a open to the public. A school board must give notice
school district may encompass several towns. to the public prior to the meeting. Notice generally
School districts are quasi-municipal cor- is given through mailings or by publishing the time
porations created and organized by state
legislatures and charged with the administration
of public schools within the state. A quasi- Pupil-Teacher Ratios for Public Schools,
municipal corporation is a political body Fall 2006
created for the sole purpose of performing one
public function. States divide up their school 20
systems into districts because localized admin- 16.4
15.6
istration and policy making are more efficient 15
14.7
Pupil-teacher ratio
and more responsive to community needs than

one state-level BUREAUCRACY.
10
Each state has numerous laws pertaining to
public schools and school districts, but state
5
statutes do not cover every educational concern.
State legislatures delegate many aspects of
public education to school districts. School 0
ILLUSTRATION BY GGS
Elementary Secondary Combined
districts have the power to fashion curricula and CREATIVE RESOURCES.
schools schools grade schools
REPRODUCED BY
make rules and regulations that apply to the
SOURCE: U.S. Department of Education, National PERMISSION OF GALE, A
schools, school employees, and students within Center for Education Statistics, Digest of Education PART OF CENGAGE
the district. School districts also have power Statistics, 2008. LEARNING.
over such matters as arranging for the
28 S C H O O L S AN D S C H O O L D I S T R IC T S
Private School Vouchers:

Church vs. State
T he specifics of school tuition
voucher systems vary from pro-
gram to program, but generally such
the establishment clause. Critics also note
that because vouchers do not cover the
entire amount of tuition at a private
Other supporters of private school
vouchers focus on the aspect of choice.
Whereas public schools are increasingly
systems offer parents of schoolchildren a school, the option of private school perceived as inadequate and dangerous,
tax-funded voucher that is redeemable at remains out of reach for the lowest- private schools are viewed by many as
the educational institution of their income students. Opponents of private offering safe, high-quality education. In
choice. The vouchers are issued yearly school vouchers further claim that vou- response to these perceptions, legislators
or at some other regular interval, and chers rob public schools of funds because have offered private school vouchers as a
they pay for a certain amount of tuition funding is based in part on student means of escape from public schools.
fees each year at nonpublic and alterna- enrollment. Finally, critics maintain that Supporters of private school vouchers
tive charter schools. The most contro- vouchers implicate other constitutional assert that they offer potential benefits
versial programs allow parents to use the provisions, such as the EQUAL PROTECTION for impoverished children. Under some
publicly funded vouchers to pay tuition clause of the FOURTEENTH AMENDMENT, proposals, private school vouchers would
at a religious school. because they provide taxpayer funds to give a limited number of low-income
Private school vouchers implicate at institutions that may discriminate on the families another choice for their chil-
least two provisions in the U.S. Consti- basis of race, religion, disability, or dren's schooling.
tution: the establishment and free exer- socioeconomic status.
Proponents of private school vou-
cise of religion clauses in the FIRST Supporters of private school vouchers cite such political philosophers as
AMENDMENT. According to the U.S. SU- chers have argued that voucher systems JOHN STUART MILL, THOMAS PAINE, and
PREME COURT, the establishment clause are actually protected by the First Adam Smith as early advocates of school
prohibits the federal government and the Amendment. According to advocates, vouchers. Mill, Paine, and Smith did, in
states from setting up a religious place of the First Amendment, with its guarantee fact, argue that the fairest and most
worship, passing laws that aid religion, of the free exercise of religion, protects efficient way to fund public education
and giving preference to one religion or vouchers because they give devoutly would be to give parents money that they
forcing belief or disbelief in any religion religious parents the same rights as less could spend on tuition at a school of
(Everson v. Board of Education, 330 U.S. devout parents: public funding for the their choice. Detractors counter that
1, 67 S. Ct. 504, 91 L. Ed. 711 [1947]). education of their children. In this view, these views received no attention until
Private school vouchers have been chal- educational systems without private 1955, the year after the Supreme Court
lenged under the establishment clause, school vouchers violate the First Amend- outlawed racial SEGREGATION in public
because they involve a form of government by discouraging religion and plac- schools in BROWN V. BOARD OF EDUCATION
mental support that may be used for ing devout parents at a disadvantage. OF TOPEKA (347 U.S. 483, 74 S. Ct. 686, 98
religious-oriented activities. Supporters contend that vouchers merely L. Ed. 873 [1954]). According to many
Critics of private school vouchers provide some balance of rights between voucher opponents, the real driving force
have charged that taxpayer support for devoutly religious parents and less de- behind private school vouchers is an
religious schools is a patent violation of vout or nonreligious parents. effort to facilitate the flight of white
and place of the meeting in local newspapers. Upon completing all the prerequisites, a teacher
School board meetings give the public an opportu- may obtain the license or permit necessary to
nity to express opinions on educational policy. teach in a particular state.
State statutes set forth minimum qualifica- States require public school teachers to
tions for public school teachers. Most states complete a probationary period before they
require full-time teachers to have a four-year receive tenure. In the context of employment,
degree from a college or university and to have tenure is a status that carries with it certain
completed a student-teaching program. States rights and protections, the most important of
may add other prerequisites, such as physical which is the protection from summary dis-
and psychological examinations and drug tests. missal. A teacher who has gained tenure status
persons from city schools that have large Harris (536 U.S. 639, 122 S. Ct. 2460, 153 that the “program is entirely neutral with
nonwhite student populations. L. Ed. 2d 604 [2002]). The Court, in a 5-4 respect to religion” because “it provides
Proposals for private school voucher decision, upheld the constitutionality of a benefits directly to a wide spectrum of
systems have been rejected by courts and voucher program established for Cleve- individuals, defined only by financial need
defeated at the polls, but voucher advo- land, Ohio. The voucher program pays and residence in a particular school
cates have been unrelenting. In 1998, in an scholarships based on family income, district.” The law “permits such indivi-
8-1 ruling, the U.S. Supreme Court with a maximum annual payment of duals to exercise genuine choice among
refused to hear a challenge to the $2,250 per child. The parents are sent a options, public and private, secular and
Wisconsin school voucher system, which check that may be used to pay tuition at religious.”
was upheld as constitutional by the private and parochial schools. For the Proponents of vouchers saw Zelman
Wisconsin Supreme Court in Jackson v. 1999–2000 school year, approximately as a major victory. They believed that the
Benson (218 Wis. 2d 835, 578 N. W. 2d 3,700 children enrolled in the program, decision cleared the way for similar
602 [1998]). While the Court's action set with 60 percent of the children from voucher programs throughout the
no national legal precedent, it signaled a families at or below the poverty level. Of United States. Opponents reiterated their
willingness by the Court to permit vouchers. the 56 schools that participated, 46 were concerns that voucher programs would
church-affiliated and actively taught take away public education dollars from
Wisconsin had been using a voucher Christian doctrines; 96 percent of the school systems and divert them to private
system since 1989, but in 1995 the scholarship students attended the reli- schools. In 2006 the Florida Supreme
Wisconsin legislature amended the law. gious schools. The curriculum of these Court ruled that a state school voucher
The original voucher plan allowed up to schools intertwined religious beliefs and program was unconstitutional under its
1.5 percent of Milwaukee public school secular topics. state constitution. A universal school
students to attend any private nonsectar- voucher program was enacted by the
ian school of their choice. The new After a parent filed suit in federal
Utah State Legislature in 2007, but voters
program allowed use of the vouchers for court challenging the law, the district
passed a REFERENDUM repealing the law
enrollment in sectarian private schools, court ruled the voucher program uncon-
before it became effective. As of 2009,
and it increased allowable student enroll- stitutional. The Sixth Circuit Court of
only a handful of states had enacted
ment to 15 percent. But most significant Appeals upheld this decision, basing its
some type of school voucher program.
was the mandate that monies would no ruling on a 1973 Supreme Court deci-
Only 61,000 of 50 million U.S. students
longer be paid directly to the chosen sion, Committee for Public Education v. attend school with a voucher.
schools. Instead, a state check would be Nyquist (413 U.S. 756, 93 S. Ct. 2955, 37
paid to the student's parent or guardian, L. Ed. 2d 948 [1973]). The Court in
FURTHER READINGS
who would endorse the check and forward Nyquist struck down a New York tuition
it to the school of choice. Opponents reimbursement plan that provided low- Bolick, Clint. 2003. Voucher Wars: Waging the
challenged the new law, claiming that it income parents with partial reimburse- Legal Battle over School Choice. Washing-
ton, D.C.: Cato Institute.
violated the establishment clause. The ment for sending their children to private
Moe, Terry M. 2001. Schools, Vouchers, and the
Wisconsin Supreme Court disagreed. It elementary and secondary schools only. American Public. Washington, D.C.:
concluded that the statute did not pro- Brookings Institution.
The Supreme Court overturned the
mote religion, but rather provided parents
Sixth Circuit decision. Chief Justice
with a “religious-neutral benefit.”
WILLIAM REHNQUIST, in his majority opinion,
CROSS REFERENCE
The U.S. Supreme Court took up ruled that the program did not violate the
vouchers again in Zelman v. Simmons- Religion.
establishment clause. Rehnquist stated
may not be terminated from a teaching position firing. In any case, a public school teacher can
without the benefit of a lengthy procedure. The only be terminated for cause, or some substan-
termination process may include a detailed tial, articulable reason.
account of reasons for the termination, an A teaching license may be revoked if the
opportunity for the teacher to correct any teacher engages in conduct that demonstrates
problems, a hearing with school district admin- unfitness to teach. The prohibited conduct varies
istrators, review and judgment by school district with different states, school districts, and school
administrators, and, finally, a meeting with the boards. A criminal conviction that involves
school board, which votes on whether the MORAL TURPITUDE, such as a conviction for theft,
teacher should be dismissed. Teachers who dishonesty, or sexual ASSAULT, generally is a valid
have not attained tenure have no recourse for a ground for revocation of a teaching license.
suspension or expulsion from the school. The

Enrollment in Public and Private Schools, 1970 to 2006 federal Drug Free School Act and Gun Free
School Act require the expulsion and arrest of
Public elementary and students who bring illegal drugs and firearms to
secondary schools school. At the heart of these policies and laws is
Private elementary and
secondary schools a the desire to protect students and teachers and
60 to prevent illegal activities from taking place on
49.3 school district property.
47.2
Students enrolled (in millions)
50 45.9 44.8
40.9 39.4 41.2 However, school districts have broadened
40
zero tolerance to include an array of infractions,
30 including the wearing of clothing associated
with GANGS, and threats directed at other
20 persons. Zero-tolerance policies have attracted
6.2 6.1
critics, who contend that overly rigid inter-
10 5.4 5.3 5.5 5.6 5.9
pretations of the rules, coupled with severe
0 punishments, can lead to disproportionate
1970 1980 1985 1990 1995 2000 2006
results. In 2001, the AMERICAN BAR ASSOCIATION
Year
a
(ABA) issued a statement in which it criticized
Beginning in fall 1980, data include estimates for an expanded universe of private schools.
Therefore, these totals may differ from figures shown in other tables, and direct comparisons
zero-tolerance rules for failing to take into
with earlier years should be avoided. account the individual circumstances of each
SOURCE: U.S. Department of Education, National Center for Education Statistics, case or the individual student’s history. The
Digest of Education Statistics, 2008. ABA called for the end of such rigid policies.
Nevertheless, the courts generally support
school district zero tolerance policies, especially
when drugs or weapons are the issue.
ILLUSTRATION BY GGS Schools and school districts have a great deal
CREATIVE RESOURCES. of control over public school students. Rules and School districts have the right to require
REPRODUCED BY
regulations can vary from school to school and students to take drug tests if they wish to
PERMISSION OF GALE, A participate in athletic and extracurricular activi-
PART OF CENGAGE range from restrictions on appearance and hair
LEARNING. length to prohibitions on electronic transmission ties. The U.S. SUPREME COURT, in Board of
devices, or beepers. Schools may not implement Education, Pottawatomie County v. Earls, 536
unreasonable rules, however. Before a student U.S. 822, 122 S.Ct. 2559, 153 L.Ed.2d 735
can be suspended from school for a lengthy time (2002), concluded that the drug-testing pro-
period, the school must give the student notice of gram was reasonable under the FOURTH AMEND-
MENT because it furthered the school district’s
the intent to suspend and an opportunity to be
heard by school officials. Students may not be “important interest in preventing and deterring
forced to pray in school or to pledge allegiance to drug use among its schoolchildren.” Moreover,
the U.S. flag. Teachers may inflict CORPORAL the court found that violation of student privacy
PUNISHMENT to control, train, or educate a student
interests was minimal.
but may use only such force as is necessary for School districts are also not bound by rigid
those purposes. The amount of force that is rules of privacy when it comes to having
permissible varies according to the situation, with students grade each other’s papers and tests.
careful consideration given to the student’s age The Supreme Court, in Owasso Independent
and maturity. A teacher may use more force on School District No. I-011 v. Falvo, 534 U.S. 426,
an older, physically mature high-school student 122 S.Ct. 934, 151 L.Ed.2d 896 (2002), reviewed
than on a younger, less mature student. Despite the scope of the federal Family Educational
the general acceptance by the courts of some Rights and PRIVACY ACT OF 1974 (FERPA) 20
measure of corporal punishment, the threat of U.S.C.A. § 1232 (g), which regulates the release
LITIGATION makes corporal punishment a poten- of student education records. The Court
tially risky behavior. rejected the claim that peer grading violated
Beginning in the 1990s, school boards FERPA. To rule otherwise would “force all
adopted zero-tolerance polices toward drugs instructors to take time, which otherwise could
and weapons on school grounds. Violations of be spent teaching and in preparation, to correct
ZERO TOLERANCE policies typically lead to an assortment of daily student assignments.”
Charter Schools: The Educational

Petri Dish
M ost families think that they have only three
choices for the education of their school-age
children: a sectarian school or other form of private
even decide that their students should study poetry
by attending open poetry readings or by setting up
their own regular poetry readings.
school that charges tuition, a free public school, or The first charter school legislation was passed
home schooling. In many states there is a fourth in Minnesota in 1991 (Minn. Stat. Ann. §§ 120.064,
option: a charter school. Charter schools do not 124.248 [West 1996]). Since 1991 approximately half
have a religious agenda and are free of cost, but of the states have enacted some form of charter
they differ from the typical public school. Although school legislation. The details vary, but the pro-
charter schools are governed by the public school grams share the basic goal of creating a limited
district in which they are located, they are free of number of schools where teachers may experiment
many of the constraints imposed on other public with a variety of learning techniques. The schools
schools in the district. have a high degree of independence, but they are
Charter schools are created to be innovative all results oriented. Thus, each school must show a
and experimental in nature and to serve as models state or local governmental education agency that
for future changes in ordinary public schools. The its students are making satisfactory progress. A
classes offered by charter schools may differ in state may, for example, require that students in
substance from classes in public schools, and the charter schools pass a yearly achievement test to
teachers may use new, alternative approaches to prove that they are receiving a well-rounded
education. Charter schools represent an opportunity education.
to experience a form of experimental, alternative By virtue of their experimental nature, charter
schooling that was previously open only to students schools are highly individualistic. Some schools
who could afford alternative private schools or who focus on a particular area of study, such as
could be educated at home. Parents also like computers, the environment, the arts, or aeronau-
charter schools because they have a say in the tics. A school that emphasizes computers, for
school's administration. instance, will have a large number of personal
Charter schools usually are run by a board computers and many teachers who specialize in
comprised of the teachers in the school and a few computer education. Other schools are designed for
of the students' parents. The board makes its own certain types of students, such as teenage students
decisions on-site. Unlike other public schools, a who have dropped out before earning their high
charter school does not have to seek approval from school degree.
the school district or school board before it can take FURTHER READING
action. To teach English literature, for example, the
Ericson, John, et al. 2001. Challenge and Opportunity: The
teachers at a charter school might discard the Impact of Charter Schools on School Districts. Washing-
traditional texts prescribed for other public schools ton, D.C.: Office of Educational Research and Improve-
and assign only contemporary poetry. They might ment, U.S. Dept. of Education/GPO.
B
The court concluded that Congress would never applicable federal, state, and local laws, but
have meant to “intervene in this drastic fashion they are privately owned and operated and are
with traditional state functions.” not obligated to follow the rules and regulations
of the school district in which they are located.
A school board has power only over the Private schools are not governed by the U.S.
public schools within its school district. Pri- Constitution and state constitutions in the same
vate schools must comply with generally way that public schools are. Constitutions
are designed mainly to protect persons from the the way for other states to adopt voucher
actions of government. Public schools are programs.
funded by governments and so must answer School districts do not have power over
to constitutions, but private schools are not
sectarian private schools, but they do have
funded by public monies, so their actions are
authority over home schools. Home schooling
not deemed governmental in nature.
is a form of education provided by parents or
Public school districts have little involve- guardians. By 2007, 1.5 million children were
ment with private schools for another reason: home-schooled in the U.S.
the Establishment Clause of the FIRST AMEND-
The growing popularity of charter schools
MENT. Under the Establishment Clause, Con-
puts additional administrative burdens on
gress may not make any laws respecting the
school districts. Charter schools do not have a
establishment of, or prohibiting the free exercise
of, religion. The Establishment Clause has been religious agenda and are free of cost, but they
made applicable to the states by the U.S. differ from the typical public school. Although
Supreme Court, which has interpreted the charter schools are governed by the public
clause to mean that public schools should be school district in which they are located, they
free of religious influences. This does not mean are free of many of the constraints imposed on
that public schools can have no connection with other public schools in the district. The first
private schools. In many school districts, public charter school legislation was passed in Minne-
schools share buses and textbooks with private sota in 1991. By 2009 there were more than
schools, and these arrangements have not been 4,000 charter schools in the U.S., serving over
declared unconstitutional. In 1997, in Agostini v. one million students.
Felton, 521 U.S. 203, 117 S. Ct. 1997, 138 L. Ed. Charter schools are created to be innovative
2d 391, the Supreme Court reversed its and experimental in nature and to serve as
decisions in Aguilar v. Felton, 473 U.S. 402, models for future changes in ordinary public
105 S. Ct. 3232, 87 L. Ed. 2d 290 (1985) and schools. The classes offered by charter schools
School District of the City of Grand Rapids v. Ball, may differ in substance from classes in public
473 U.S. 373, 105 S. Ct. 3216, 87 L. Ed. 2d 267 schools, and the teachers may use new, alterna-
(1985) and held that a public school teacher tive approaches to education. They usually are
may teach disadvantaged students in a private run by a board comprising the teachers in the
school classroom if the legislation authorizing school and a few of the students’ parents. The
board makes its own decisions on-site. Unlike
such activity contains safeguards that prevent
other public schools, a charter school does not
the teacher from advancing religion.
have to seek approval from the school district or
Many states have set up programs that school board before it can take action. However,
challenge the limits of the Establishment each school must show a state or local
Clause. Voucher programs are an example of governmental education agency that its students
education-related legislative experimentation are making satisfactory progress. A state may,
with the Establishment Clause. Under a voucher for example, require that students in charter
program, the state provides taxpayer money to schools pass a yearly achievement test to
parents and guardians of public school students prove that they are receiving a well-rounded
to be used to send the students to religious or education.
private schools. The Supreme Court, in Zelman
Schools and school districts continually
v. Simmons-Harris, 536 U.S. 639, 122 S.Ct.
adapt their policies, rules, and regulations to
2460, 153 L.Ed.2d 604 (2002), upheld the
keep pace with societal changes and to meet the
constitutionality of an Ohio program that
provided low-income Cleveland parents tax- needs of students and the community. Curric-
supported vouchers worth $2,250 per pupil, ula, grades, attendance requirements, and age
which they could use to transfer a child to a standards vary from district to district and even
participating private school of the family’s from school to school.
choice. The court stated that “Cleveland’s pilot The federal government imposed new
program permits individuals to exercise genuine requirements on local school districts when it
choice among options public and private, enacted the No Child Left Behind Act of 2001
secular and religious.” The decision cleared (NCLB). The act, which was proposed by
SCIENTER 33
President GEORGE W. BUSH, contained sweeping Hochfelder, 425 U.S. 185, 96 S. Ct. 1375, 47 L.
reforms for the U.S. public school system and Ed. 2d 668 (1976), the U.S. Supreme Court
was centered on four basic principles: increased described scienter as “a mental state embracing
accountability by school districts, increased intent to deceive, manipulate, or defraud.” The
flexibility and local control, expanded options definition in Ernst was fashioned in the context
for parents, and an emphasis on proven of a financial dispute, but it illustrates the sort of
teaching methods. guilty knowledge that constitutes scienter.
Under the NCLB, states have developed Scienter is relevant to the pleadings in a case.
learning standards for students and have insti- Plaintiffs and prosecutors alike must include in
tuted annual testing to ensure that the standards their pleadings allegations that the defendant
have been met. Schools must make Adequate acted with some knowledge of wrongdoing or
Yearly Progress in test scores to continue to guilt. If a legislative body passes a law that
receive federal aid. If they fail to meet these has punitive sanctions or harsh civil sanctions,
standards, they may be closed. Test results for it normally includes a provision stating that
each school in the United States are published a person must act willfully, knowingly, inten-
yearly, which places pressure on school districts tionally, or recklessly, or it provides similar
to improve failing schools. By 2009, NCLB scienter requirement. Legislative bodies do not,
continued to generate debate over its effective- however, always refer to scienter in statutes.
ness. Proponents pointed to rising test scores
throughout the country, while critics charged In the Ernst case, the investors in a
that teachers were forced to “teach to the test” so brokerage firm brought suit against an account-
students’ test scores would continue to rise. ing firm after the principal investor committed
suicide and left a note revealing that the
FURTHER READINGS brokerage firm was a scam. The investors
Abernathy, Scott. 2007. No Child Left Behind and the Public brought suit for damages against the brokerage
Schools. Ann Arbor: Univ. of Michigan Press. firm’s accounting firm under sections 10(b) and
Green, Preston C., and Julie F. Mead. 2003. Charter Schools 10b-5 of the Securities Exchange Act of 1934
and the Law: Establishing New Legal Relationships.
(15 U.S.C.A. § 78a et seq.), which makes it
Norwood, Mass.: Christopher-Gordon.
Sugarman, Stephen D., and Emlei M. Kuboyama. 2001. unlawful for any person to engage in various
“Approving Charter Schools: The Gate-Keeper Func- financial transgressions, such as employing any
tion.” Administrative Law Review 53 (summer). device, scheme, or artifice to defraud, or
Yudof, Mark G., David L. Kirp, and Betsy Levin. 2001. engaging in any act, practice, or course of
Educational Policy and the Law. 4d ed. San Francisco:
business that operates as a FRAUD or deceit upon
Wadsworth.
any person in connection with the purchase or
CROSS REFERENCES sale of any security.
Abington School District v. Schempp; Brown v. Board of Significantly, the Securities Exchange Act
Education of Topeka, Kansas; Civil Rights; Education Law; does not mention any standard for intent. The
Engel v. Vitale; In Loco Parentis; Integration; School
courts had to decide whether a party could
Desegregation.
make a claim under the act against a person
without alleging that the person acted inten-
SCIENTER tionally, knowingly, or willfully.
[Latin, Knowingly.] Guilty knowledge that is
The investors in Ernst did not allege that
sufficient to charge a person with the consequences
the accounting firm had an intent to defraud
of his or her acts.
the investors. Rather, they alleged only that the
The term scienter refers to a state of mind accounting firm had been negligent in its
often required to hold a person legally accounting and that the NEGLIGENCE constituted
accountable for her acts. The term often is a violation of the Securities Exchange Act. The
used interchangeably with mens rea, which Supreme Court ruled that an allegation of
describes criminal intent, but scienter has a negligent conduct alone is insufficient to prove
broader application because it also describes a violation of the Securities Exchange Act.
knowledge required to assign liability in many According to the Court, the language in the
civil cases. act reflected a congressional intent to require
Scienter denotes a level of intent on the part plaintiffs to prove scienter on the part of the
of the defendant. In Ernst and Ernst v. defendant to establish a claim under the act.
34 S C I EN T I F I C E V I D E N C E
Most courts hold that reckless conduct may et seq., was unconstitutional because it made
also constitute scienter. The definition of reckless the sale of part of a migratory bird a felony
includes conduct that reasonable persons know without proof of scienter. According to the
is unsafe or illegal. Thus, even if a defendant did court, eliminating the element of criminal
not have actual knowledge that his behavior was intent in a criminal prosecution violates the
criminal, scienter may be implied by his reckless DUE PROCESS CLAUSE of the FIFTH AMENDMENT to the
actions. U.S. Constitution unless the penalty is relatively
In some cases the level of scienter required to small and the conviction does not gravely
find a defendant liable or culpable may fluctu- besmirch the reputation of the defendant. The
ate. In Metge v. Baehler, 762 F.2d 621 (1985), a penalty in the act authorized two years in prison
group of investors brought suit against a bank, and a $2,000 fine, and the court considered that
alleging that the bank had aided and abetted punishment too onerous to levy against a
a securities fraud operation. To establish a person who had acted without any scienter.
defendant’s liability for aiding and abetting
FURTHER READINGS
a securities fraud transaction, the plaintiff must
prove that there was a SECURITIES LAW violation, Bard, Lawrence R. 1992. “A Distinct-Responsibility Ap-
proach to Accountants’ Primary Liability under Rule
that the defendant knew about the violation,
10B-5.” George Washington Law Review 61 (November).
and that the defendant substantially assisted in Hodges, Clarissa S. 2002. “The Qualitative Considerations of
the violation. In sending the case back to the Materiality: The Emerging Relationship between Mate-
trial court, the U.S. Court of Appeals for the riality and Scienter.” Securities Regulation Law Journal
Eighth Circuit stated that in a case alleging 30 (spring).
Karmel, Roberta S. 2001. “‘Wharf,’ the Reform Act and
aiding and abetting, more scienter is required if
Scienter.” New York Law Journal (December 26).
the plaintiff has little proof that the defendant Langevoort, Donald C. 2006. “Reflections on Scienter.”
substantially assisted in the violation. The court Lewis & Clark Law Review 10 (spring).
noted that the bank seemed blameworthy only
because it failed to act on possible suspicions of CROSS REFERENCE
impropriety and that the bank had no duty to Aid and Abet.
notify the plaintiffs about the actions of others.
In such a case, the court advised that “an alleged SCIENTIFIC EVIDENCE
aider-abettor should be found liable only if
Evidence presented in court that is produced from
scienter of the high ‘conscious intent’ variety
scientific tests or studies.
can be proved. Where some special duty of
disclosure exists, then liability should be possi- Scientific evidence is evidence culled from a
ble with a lesser degree of scienter.” scientific procedure that helps the trier of fact
understand evidence or determine facts at issue
In some cases or claims, a plaintiff need not in a judicial proceeding. Under rule 702 of the
prove that the defendant acted with any scienter. FEDERAL RULES OF EVIDENCE and similar state court
These cases or claims are based on STRICT rules of evidence, “a witness qualified as an
LIABILITY statutes, which impose criminal and
expert by knowledge, skill, experience, training,
civil liability without regard to the mental state or education” may testify and offer opinions in
of the defendant. For example, a statute that court if “scientific, technical, or other special-
prohibits the sale of cigarettes to minors may ized knowledge will assist the trier of fact to
authorize punishment for such a sale even if the understand the evidence or to determine a fact
seller attempted to verify the buyer’s age and in issue.” Article VII of the Federal Rules of
believed that the buyer was not a minor. Courts Evidence contains other rules on EXPERT TESTI-
have held that a legislative body may not MONY and scientific evidence. All states have
authorize severe punishment for strict liability rules on expert testimony and scientific evi-
crimes because severe punishment is generally dence that are similar to the rules in article VII.
reserved for intentional misconduct, reckless
Expert testimony on scientific evidence is
conduct, or grossly negligent conduct.
different from ordinary testimony from layper-
In United States v. Wulff, 758 F.2d 1121 sons. A lay witness may testify to inferences and
(1985), the U.S. Court of Appeals for the Sixth give opinions only if they are rationally based
Circuit declared that the felony provision of the upon the witness’s perceptions of the subject of
MIGRATORY BIRD TREATY Act, 16 U.S.C.A. § 703 the testimony. Experts, by contrast, may give
SCIENTIFIC EVIDENCE 35
opinions and testify about possible inferences expert witness on the issues surrounding the
based in part on information obtained from care he received from the defendant, the expert
secondhand sources and not from observation of witness must testify about the witness’s creden-
the object of the testimony. For example, a tials and give details about the plaintiff’s
layperson would not be allowed to take the treatment.
witness stand and offer an opinion on a plaintiff’s Some scientific tests and examinations that
injury unless the individual had witnessed are not universally accepted are nevertheless
relevant information regarding the injury. How-
generally considered reliable. Some examples are
ever, a doctor who is certified as a specialist in the
neutron activation analysis to determine the
particular injury could take the stand and
identity of goods, voiceprints to determine a
offer opinions on the injury based not only on
person’s identity, and genetic testing or DNA
an examination of the plaintiff but also on
analysis. These types of scientific procedures
secondhand information that is normally relied
may be accepted in the medical communities,
on by experts in that particular field of medical
but they are not so established that they may be
study.
judicially noticed as automatically valid sources
One of the most important issues that arises of scientific evidence. They may be admitted as
in expert testimony is which scientific procedures evidence, but only after an expert witness has
a court should accept as evidence. Many testified to the validity of the test. In determining
scientific procedures are not seriously in dispute whether to admit scientific evidence from
and are accepted by courts with little or no procedures that are not universally accepted, a
inquisition into their validity. Examples include court must ask whether the test is reliable. A
fingerprint tests for purposes of identification, technique’s reliability depends on a number of
blood tests, breathalyzer tests for alcohol con- factors, including whether the technique can be
sumption, and ballistics tests of bullets and their or has been tested, whether it has been subjected
impact areas. These scientific procedures are so to peer review, whether the test procedures have
widely accepted that a court may take JUDICIAL been published, whether the test has a margin of
NOTICE of the procedure’s validity. Judicial notice error and, if so, at what rate, and whether the
means that the parties in the case do not have to technique, as applied, conformed to existing
present evidence to the court to establish the standards for the test (Daubert v. Merrell Dow
validity of the scientific procedure. In some Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct.
instances legislatures have specifically authorized 2786, 125 L. Ed. 2d 469 [1993]).
the use of scientific tests, such as breathalyzer
In Kumho Tire Co., Ltd. v. Carmichael, 526
tests for suspected drunk drivers.
U.S. 137, 119 S. Ct. 1167, 143 L. Ed. 2d 238
Whether they are judicially noticed or (1999) the U.S. Supreme Court ruled that the
legislatively mandated, scientific tests that are Daubert standards govern not just the admissi-
universally accepted must be presented by a bility of scientific evidence in federal court, but
qualified expert. A person is established as a should be applied to all witnesses seeking
qualified expert before the court through federal court approval to testify as an expert.
questioning by the attorney who is using the Thus, the Supreme Court found that a pur-
witness as an expert. The attorney asks a series ported expert on tire failure was subject to a
of questions to establish that the witness has Daubert inquiry before he could be permitted
adequate education and training to testify as an to testify on the subject in a products liability
expert—a process called laying a foundation for trial, even if some of his proffered testimony
the witness. Once the court is convinced that was not wholly “scientific.” The lower court
the witness is an expert on the procedure or had attempted to draw a distinction between
subject matter that will be presented as scientific expert for which the Daubert standards
evidence, the witness gives an expert opinion did apply and a technical expert for which the
to the exact procedures that were used or the Daubert standards did not apply. By expanding
factual circumstances that arose in the case at the DAUBERT TEST, the Court reemphasized the
hand. For example, assume that a person sues a trial court’s broad discretion in matters of
doctor for MEDICAL MALPRACTICE, arguing that the expert testimony.
defendant failed to set a broken bone properly. In some instances courts are reluctant to
If the plaintiff offers a bone specialist as an admit certain scientific evidence because the
36 S C I EN T I F I C E V I D E N C E
procedures yield results that are not considered experts from the same field who have studied
sufficiently reliable to be used as evidence. Such the same evidence and come to different
procedures include POLYGRAPH and chemical conclusions. Experts have become indispensable
tests that have been created to determine to the vast majority of litigated cases, and many
whether a person is telling the truth. If all cases, civil and criminal alike, come down to a
parties agree that testimony derived from such battle between experts. One notable exception
procedures shall be admissible, however, a court to this trend is the PATERNITY case, in which
is free to allow the evidence to be introduced. blood test results or DNA test results can
In any case, regardless of the level of establish the ultimate issue in the case. This is
true, however, only if the parties in the paternity
acceptance of a particular scientific procedure,
case agree that the particular tests will be
the scientific evidence presented must be
conclusive and if the tests show that the
relevant to the issue at hand. Furthermore, the
individual named as the father could not be a
scientific evidence must have been obtained in a
parent of the child in question. If the tests show
manner that is consistent with the way such
that the individual named as the father could be
evidence is normally obtained. For instance,
the parent, the test results will not dispose of the
assume that a physicist intends to testify to the
case, and the parties will have to present further
speed of the defendant’s vehicle in a personal
evidence.
injury case stemming from a car accident. If the
physicist used different methods from those Courts have the discretion to appoint an
used by other physicists in determining a expert witness to testify to scientific evidence.
vehicle’s speed, the court may refuse to allow Under rule 706 of the Federal Rules of Evidence
the physicist to testify as to the vehicle’s speed. and similar state court rules of evidence, a court
may appoint an expert to present evidence on a
An expert witness giving testimony on particular topic and order compensation for the
scientific evidence may offer opinions on issues
expert’s time and effort. Typically, in a civil
related to that evidence. An expert witness may
case, the parties must apportion the costs as the
also give an opinion on the ultimate issue in the
court directs. In just compensation cases under
case. Under rule 704 of the Federal Rules of
the FIFTH AMENDMENT and in criminal cases, the
Evidence, however, an expert witness testifying
court orders payment for the expert out of
with respect to the mental state or condition of
government funds.
a criminal defendant may not state “an opinion
or inference as to whether the defendant did or One of the most well-known experts on
did not have the mental state or condition scientific evidence in the United States is Barry
constituting an element of the crime charged or Scheck, a criminal defense lawyer who rose to
of a defense thereto.” This rule, which is applied prominence during the 1995 O.J. SIMPSON
by courts only in criminal cases, was approved murder trial as a member of Simpson’s so-
by the U.S. Congress in 1984, largely in called “Dream Team.” In 1992 he and fellow
response to the outcome of the criminal Dream-Team member Peter Neufeld opened
prosecution of John Hinckley, who attempted the National Association of Criminal Defense
to assassinate President RONALD REAGAN in 1981. Lawyers’ Innocence Project, a nonprofit legal
Hinckley was charged with attempted assassina- clinic at the BENJAMIN N. CARDOZO School of Law
tion, assault on a federal officer, and use of a in New York. Through testing of DNA EVIDENCE,
firearm in the commission of a federal offense, the Innocence Project has helped exonerate 127
but was found not guilty by reason of insanity wrongly convicted inmates. Scheck, 43, has
after the jury heard testimony from a psychia- chronicled the stories of his exonerated clients
trist who declared that Hinckley could not be in books and on the lecture circuit. He also
found guilty because he lacked the knowing assisted Colorado prosecutors and police offi-
mental state required for a conviction on the cers investigating the Jon-Benet Ramsey murder
charges. case.
The weight given to scientific evidence may FURTHER READINGS
vary according to the particular test that yielded
Guidotti, Tee L., and Susan G. Rose. 2001. Science on the
the evidence. One party’s expert testimony may Witness Stand: Evaluating Scientific Evidence in Law,
be convincing, but it may not be dispositive of Adjudication, and Policy. Beverly Farms, Mass.: OEM
the case because the other party may have Press.
SCIRE FACIAS 37
Masters, Brooke A. 2000. “Helping Those Who Might Be presence of the patent holder to justify
Wrongfully Imprisoned; Lawyers, Students Pursue the patent. If there was a genuine dispute about
New Trials in Questionable Cases.” Washington Post
(December 7).
the validity of the patent, the patent holder
Moenssens, Andre A., and Carol E. Henderson. 2007. could request a trial before a jury in the Court
Scientific Evidence in Civil and Criminal Cases. 5th ed. of King’s Bench. The jury resolved any issues of
New York: Foundation Press. fact, and then the case was sent back to the
Chancery. The chancellor made the final
CROSS REFERENCES
judgment on whether to revoke the patent.
Fingerprints; Forensic Science; Insanity Defense.
The scire facias writ did not survive in
patent law. Under modern law, only a person
SCINTILLA with a case or controversy with respect to a
A glimmer; a spark; the slightest particle or trace. particular patent may challenge the patent. Also,
“Scintilla of evidence” is a metaphorical a claim of patent invalidity is not tried before a
expression describing a very insignificant or royal court but a federal patent court. However,
trifling item of evidence. The common-law rule the issue of patent validity may be tried before a
provides that if there is any evidence at all in a jury, much like the old scire facias writ.
case, even a mere scintilla, that tends to support In modern practice, the writ of scire facias is
a material issue, the case cannot be taken from used in the enforcement and collection of
the jury but must be left to its decision. judgments. When a plaintiff in a civil case
A court may not enter a DIRECTED VERDICT obtains a money judgment against a defendant,
where there is a scintilla of evidence which the court order to pay the judgment may expire
would support a contrary conclusion. However, after a certain number of years if the judgment
the scintilla of evidence upon which a case must remains unpaid. State and federal laws allow the
be sent to the jury must be real, material, plaintiff to make a motion to the court before
pertinent, and relevant evidence, not speculative the time period expires to continue the effect of
and theoretical deductions. the court’s order. If the plaintiff fails to make
such a motion, she may file a writ of scire facias
CROSS REFERENCE to revive the judgment. The defendant would
Directed Verdict. then have to appear before the court and
explain why the judgment should not be
SCIRE FACIAS revived. If the defendant has already paid the
[Latin, Made known.] A judicial writ requiring a plaintiff, or if the defendant has evidence that he
defendant to appear in court and prove why an owes the plaintiff nothing, the defendant may
existing judgment should not be executed against present evidence and shift the burden of proof
him or her. to the plaintiff.
In the law, scire facias is a judicial writ that If the defendant is unable to defend his
is brought in a case that has already been before failure to pay the judgment, the court will order
a court. Writ is the old English term for a execution of the judgment. The court may order
judicial order. Some states still use the term. A the defendant to submit to a financial status
scire facias writ commands the person against examination, to sell property to satisfy the
whom it is brought to appear before the court judgment, or to take other measures to satisfy
and show why the record should not be resolved the judgment.
in favor of the party who brought the writ. The writ of scire facias has been abolished on
The scire facias writ originated in England, the federal level and in most states. Plaintiffs may
and its use was adopted by the American revive an expired or dormant judgment by filing
colonists. In eighteenth-century England, the a civil claim in a court of general jurisdiction and
writ was used to repeal letters patent. Letters asking for revival of the judgment. The courts
patent were letters written by the king or queen that have eliminated the writ have found its
that granted inventors exclusive patent rights complex procedures unsuited to the needs of
over their inventions. Any person who thought modern society.
a patent was invalid based on false information In some jurisdictions that still permit a scire
or the existence of a prior invention could ask facias writ, the writ has fallen into disuse.
the royal Court of Chancery to request the In Connecticut, for example, the judicially
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little there is to keep us going, and against a rainy day,
maybe. We have got other boys, too, besides Walter, though
one of them has not behaved as he ought to have done; he
did me out of High Beech, George did—or his wife did, by
putting him up to it, as my mistress says; but, any way, it
was done by him. And then there's Elizabeth, and she not
married, and not likely to be. You understand what I mean,
Mr. Tincroft?"
John didn't understand; and he hinted as much.
"Why, aren't they all on my hands, more or less, Mr.

Tincroft?" said the old farmer. "And what I mean is, that if
Walter is come home well-to-do, well and good; but if he
isn't, it doesn't stand to reason that I should have the
keeping of him and his girl, and he not fit to do a day's
turn, and perhaps not likely to be."
"And you wish me—let us understand one another, Mr.

Wilson—you wish me to furnish you with information which
your son withholds?" John said this with a quickened pulse,
and a slight colour on his cheek, I daresay; but otherwise,
he kept his temper, and spoke quietly and calmly.
"It would be only friendly in you to speak the word, if

you can," said old Matthew.
"Then I am very glad that I cannot. But there are a few

words I should like to say, Mr. Wilson; and then we had
better close our conference, on this subject at least. You are
anxious, and naturally so, I daresay, to avoid having fresh
and unexpected expenses cast upon you."
"Being getting old, you see, Mr. Tincroft; and having

enough to do, so to speak, in holding my own," said the
farmer, insinuatingly.
"Yes, exactly so. Well, then, let me tell you in
confidence, if you prefer it, or otherwise, as you please,
that I am ready and willing to take all care and
responsibility off your hands. Your son has done me the
honour and pleasure of making my house his home. It will
be his home as long as he pleases, and I hope until he gets
well again. When he does, it will be time enough to know
what his prospects are and what will be best for him to do;
and as far as I can, I shall help him, if he needs help."
"That's very good of you to say so, Mr. Tincroft,"

interposed the old farmer, brightening up.
"Until then," continued John, without heeding the

interruption, "I will promise on my wife's part as well as my
own, that he shall have all possible care bestowed upon
him. But if it should be otherwise ordained, and what you
seem to anticipate should come to pass, I promise you that
your orphan grand-daughter shall have a home, as long as
she needs one. I say this to set your mind at rest, Mr.
Wilson; and now we will drop the subject, if you please."
"But no offence, I hope, Mr. Tincroft?"
"No offence at all, sir," said John, shaking hands with

Matthew, as he escorted him to the door.
CHAPTER XXVI.
SARAH'S CONFESSION.
JOHN had other and more satisfactory passages at this

time at the Manor House than that jotted down in the
foregoing chapter. And he had time for a good many
conversations, private and confidential, or otherwise, as the
case might be, seeing that his visit was prolonged day after
day while waiting Walter's pleasure to return.
The truth is, old Matthew Wilson had gone away from
his conference with Tincroft very considerably puzzled. Like
all crafty and designing people, he suspected everybody
with whom he had to do of being crafty and designing; and
that John was disinterested in his kindness to Walter never
entered his thoughts.
"He knows more than he chooses to tell," the close-

fisted, money-loving man argued. "He has found out that
Walter has got money, and he means to have as much of it
as he can get; and 'tis my duty to take care that he doesn't
get it. At all events, if it is worth his while to keep Walter
and his girl at free quarters, it would be worth my while."
Saying this to himself at first, and afterwards to his

dame, increased kindness was, for a little while, shown to
the invalid, who, in the first flush of the above evanescent
conclusions, was so strongly urged to prolong his stay at
Low Beech, that he consented, the more readily, perhaps,
that the air of his native place seemed to infuse a little fresh
strength into him.
John, all this while, was pleasantly enough occupied at
the Manor House, contenting himself with occasionally
looking in at the farm, to keep up the friendly intercourse
which had been asked for. Tom and he were often together
now; and in the fulness of his heart-gladness, John spoke of
the new-found joy of his home.
"I always knew I was better off than I ever deserved to

be, Tom; but I didn't know till of late what a treasure I had
always had in my possession." It was in this way John put
it. "You know, my dear fellow," said he, "I was never like
other young men—you, for instance. I had never known
anything of the pleasures of home and domestic life, so no
wonder I went blundering on. At least, that's the only
excuse I can make for myself. And then, you see, without
intending it, what mischief I got into! And I can't help
feeling every day, that if I had been made to smart ever so
much for my folly, it would have been no more than
deserved. And instead of that, Tom, only think what a
blessing I have had all along, and without knowing, too—
that is, without knowing its full value. If it hadn't been for
my stupidity, I should have found it out years and years
ago, I am sure. But if it hadn't been for dear Sarah herself,
I shouldn't have known it even now."
"And think!" exclaimed John, as his admiring and

amused former college chum listened with praiseworthy
gravity, thinking within himself that some people's simplicity
is greatly to be set above all the maxims of worldly wit and
wisdom ever enunciated. "Think, dear Tom, what a
happiness it is to me now to see that everything has turned
out for the best, not to me only; I hope I am not quite so
selfish as to think only of myself, but to others as well; and
how things have been so brought about as that Walter and
Sarah and I are such friends."
"It puts me in mind," John went on enthusiastically, "of
one of the hymns in good old Mrs. Barry's hymn-book, 'Dr.
Rippon's Selection,' you remember, that you sometimes
laugh at me about."
"Do I, John? I am very sorry I ever did; but I never will

laugh at you again," said Tom, who was moved by John's
earnestness, so as almost to reverence him for his humble
piety.
"Oh, that's nothing, Tom. I never minded your laughing,

dear friend. I do many things that are fit only to be laughed
at, I know. But that hymn, I often think of it, Tom. It begins
—"
"Through all the various shifting scene

Of life's mistaken ill or good,
Thy hand, O God, conducts unseen
The beautiful vicissitude."
"And then there's another—"
"Thy ways, O Lord, with wise design,

Are framed upon Thy throne above,
And every dark and bending line.
Meets in the centre of Thy love."
"So beautiful because so true," added John.

"You seem to have got them by heart, dear John," said
Tom.
"Yes," said John, quietly, "a good many of the hymns I

have. The fact is, I have got good old Mrs. Barry's hymn-
book. She left it me as a legacy when she died, about six
years ago. She thought of me as poor little Josiah Tincroft's
only child, the last of the Tincrofts, she said, and told her
son (the college scout, you remember) to send it to me,
with her love, which he did."
In her father's absence, the young Helen was passing

away the time pleasantly enough at Tincroft House; the
only drawback she experienced was her anxiety on account
of his health, and this was partly modified and allayed by
the encouraging hopes that had been held out to her by her
very kind host and hostess.
There were times, indeed, when the memory of her

recent loss cast an additional shade over her young life at
this time; but it was not an entirely dark shade; for dearly
as she had loved, and still loved her mother, the cloud had a
silver lining—there was hope, nay, even certainty and glory
behind it. Her darling, departed mother was "not lost," no,
not lost, only "gone before."
"I don't know how those who have no hope sorrow

when they mourn for the dead," said Helen one day to her
friend Mrs. Tincroft. "But I know what a blessed thing it is to
feel sure that those who 'sleep in Jesus' are safe and
happy; and we have only to be followers of them to meet
with them again—in another and better world, dear."
The two ladies were in Helen's pretty room when the

serious and confidential talk occurred of which this formed a
part. The room was quite fit to be called a lady's bower
now; for by Sarah's undiminished attentions, with an
occasional unloosing of John's purse-strings, all manner of
pretty feminine ornaments—useful and useless—had found
their way into it. As I have said, it was a pleasant room,
with a southern aspect, and by day the sun shone into it
cheerily, sufficiently screened by the Venetian verandah
without, while the pretty flower garden below had begun to
put on a very lovely aspect, with promise of other and more
gorgeous hues as the summer advanced.
I do not know what led Sarah and Helen to the strain of

conversation just noted. It might be the revival of
vegetation after the winter sleep of nature; or perhaps
Helen's reminiscences had wandered back to the far-off land
where her mother lay buried. But I know that her simple
observation was to be like the little mustard seed, "the
smallest of all seeds," which when cast into the ground
grows, and "when it is grown is the greatest among herbs."
And I may remark that Sarah and Helen,

notwithstanding the difference in their ages, were extremely
well suited to each other in pleasant companionship. At
first, strange as it may seem, the woman of forty had felt as
though she must stand a little in awe of the girl of fifteen;
but she soon discovered that this fear was groundless.
In this respect Helen's unacquaintance with what are

called the accomplishments of modern education was an
advantage to her; for she could not, even accidentally and
unintentionally, place herself, or seem to be placed, in this
respect, on higher ground than her hostess.
And then her charming simplicity, combined with natural

good breeding, was perfectly enrapturing to Mrs. Tincroft,
who, I am afraid, had not met with much of either of these
desirable commodities in the few female acquaintances she
had ever known or made.
On the other hand, Helen was equally pleased with

Sarah. It is no reflection on the present condition Of society
in Australian towns to say that a good many years ago
there was little in the female portion of it, any more than in
the male, to give an idea of high polish. Perhaps what was
missing in this kind of varnish was gained in sincerity. But of
this, I am not at all sure; and let this be as it may, the
young Helen had had so little experience of anything above
the rough and homely manners of life in the bush, that she
was unconscious of the little defects in her hostess which I
have rather hinted at than described. All this would have
gone for but little, however, if the overflowings of Sarah's
kindly maternal, or otherwise better, instincts had not
positively overwhelmed the motherless girl with a sense of
grateful obligation. No wonder, therefore, that the two were,
almost from the first, mutually pleased with each other, and
that, before long, strong affection sprang up between them.
What added to this hidden sympathy between the

matron and the maiden was the fact that both of them were
nice quiet listeners. For instance, Mrs. Tincroft could sit for
hours—if Helen had chosen to have all the talk to herself for
so long—hearing of the child-woman's life in the bush, and
of the strange adventures connected with bush life in
general.
And especially poor dear Sarah was never tired of being

told, again and again, of that passage of arms (traditionally
as far as the narratress was concerned) in which her father
came to the rescue of her mother, and which led, to their
after acquaintance. It was with thrilling interest—(if such a
hackneyed expression may be used here, but in this case, it
being an appropriate expression, it may, I hope, be used)—
it was with thrilling interest, then, that Sarah listened, with
all her ears, as we sometimes say, to the account given by
Helen of her mother's bravery and presence of mind.
"I never could have done such a thing as that—never,"

said she, half laughing and half crying, when she first heard
the story. "To think of firing off a pistol—and at a man, too!
Oh, tell it me again, dear."
So, as I have said, Sarah heard the story over and over
again, much as I have told it, and about poor Styles; and
then her own father came in for a full share of eulogy, of
course. And here again Sarah's feelings almost overpowered
her, as she cried out—
"I am prouder of my cousin than ever I was—dear

Walter! And I am so glad—so glad—oh, so glad that he
found such a dear precious wife as your mother was to him,
darling Helen. And, oh, if you could but know how I do love
you!"
And then came mutual embracings, and a little tear-

shedding, before they could settle down quietly again.
I have briefly described what happened at one

particular time. But the same feelings were stirred, and
almost to the same excess, whenever the story was retold.
And I think it requires a subtler psychologist than the
present writer to analyse the state of Sarah's mind at those
times.
Helen's talk was often of her mother, of course. And

here her heart went with all she said when she described
her home piety, her loving disposition, her gentle manners,
and the general happiness she diffused around her. It might
be on one of these occasions that the weeping child gave
utterance to her faith and hope in the Gospel, and spoke of
the comfort she derived from it.
And so the time passed away pleasantly, as I have said,

during the absence of the master of Tincroft House and his
friend Walter—the more so that the two ladies received
letters, by every other day's post, from the absentees,
giving tolerably good accounts of themselves. They were
not alarmed, nor greatly concerned, therefore, when the
proposed few days of absence were extended to
considerably more than a month.
Of course, in all this time, Helen's bower did not

monopolise all the attention of either herself or her hostess.
The commonplaces of everyday life had to receive their
share of attention, and, to the extreme delight of Sarah,
she found an able coadjutor (or trix) in the young Helen.
Wonderful was the maiden's skill in concocting rich soups
and stews, though (to Jane's horror) she laughingly
regretted that the best possible foundation for these dishes,
namely, a kangaroo's tail, could not be obtained in England
for love or money, she supposed.
And then the two loving companions took many a quiet

walk into the country around Tincroft House, which was now
putting on its early summer beauty. To Helen this was all
new; for nothing can be much more distinctly different than
the appearances of nature in the two hemispheres. And the
enthusiastic delight of the young Australian in her first
acquaintance with English country scenery was so
contagious, that I question if Sarah had ever before
understood or appreciated how much beauty can be
discovered in a blade of grass, a wayside flower, or a
budding twig of hazel.
On one of these pleasant excursions, in an outburst of
confidence, Sarah broke the ice of reserve under which was
concealed one of the few secrets which she had kept back
from Helen. It cost her some confusion of face, perhaps, if
not of mind, to make the confession, which, indeed, sprang
out of an innocent question put by Helen.
"Did you and my father know much of one another

before he left England?" the simple-hearted girl asked, as
she and Mrs. Tincroft sat under the fresh green foliage of a
widespreading beech tree, which, like themselves, was
rejoicing in the midday sunshine.
"Yes, my dear; we were cousins, you know, then, just

as we are now. And we lived near one another, as I have
told you. Didn't he ever say anything about—about old
times—and me, to your mother, do you think?"
"Not that I ever heard of, dear; only about your being
his cousin. But he didn't often talk about England, I think;
for I remember my mother telling me, not very long ago—
for it was just before my little baby brother was born—that
she knew very little about father's relations."
"Ah, I daresay he was so happy then, dear Helen, that

he did not care to remember that he hadn't always been
happy. And, dear me! I can't think how it ever turned out
that he could ever have thought of coming back, and of
living in the same house and home with his naughty
cousin."
"What do you mean, dear? You are not sorry we came

back, and are living with you and Mr. Tincroft, are you?"
asked Helen, in some consternation.
"Oh no, no; I am so glad, so very glad. It is so good of

him, and of you too, my dear. I never was so happy in all
my life as I am now," said Sarah.
And then there was a renewal of embracing, and more

kisses, and a few tears, all of which, though very pleasant
to the young girl, at least as far as the embraces and kisses
went, slightly puzzled her; and the tears—what did they
mean? And what did her dear friend mean by calling herself
her father's "naughty cousin"?
"I made your father very unhappy once," continued

Sarah, presently, in a whisper, when they had settled
themselves down again quietly on the grassy bank under
the beech tree. "It was I that drove him away from his
home, I am afraid, dear Helen."
"Dear! Dear! So good and kind as you are! How could

you?"
"I am afraid I used him badly, my dear, without

intending; but I was young and thoughtless, and liked to
have my games, as silly children do. You know, or you don't
know, but I may tell you now, we were engaged to be
married, my cousin Walter and I, and should have been, no
doubt, only I was so foolish as to make-believe that I was
pleased to have another—another lover coming after me. I
did not think what I was doing, and I didn't mean anything
wrong, dear; and perhaps that's why it all turned out for the
best, as it did."
"For my cousin went away, after treating me as I

deserved, and we learned to forget one another, and then I
got married to that other whom I had made game of, and
who was too good for such a silly thing as I was, and he is
my dear John Tincroft now, and I love him so much; he is
so good, and I never knew how much he deserved to be
loved, till it came to me by degrees; and I do love him, my
dear."
"And then, you know, dear, when my cousin went

abroad, and got over his unhappiness because of the way I
had used him, he found out, I haven't any doubt, that he
had had a happy escape from such a bad bargain as I
should have been to him; and he got a better wife than
ever I should have made him; and I don't wonder he never
cared to say anything about what had gone before. All I
wonder is that he could ever bear the thought or sight of
me. But it must be all because of his goodness and John's."
"And I am so glad it has come round so, and we can

look upon one another as cousins again; and with you,
darling, to make us all so happy! And when Walter—my
cousin Walter and your father—gets better, and finds a
home for himself—which I am sure he needn't think of so
long as there's Tincroft House—but whatever is to come
next, I hope we shall never be parted, dear. And now I think
we had better be going homewards, for we mustn't forget
we have got to have our dinner, you know."
To say that Helen listened to this rather tangled string

of confessions with extreme wonderment is very mildly
stating confusion into which she was thrown. Perhaps this
confusion was betrayed by her looks; for, as they walked
slowly towards the house, her companion remarked,—
"You don't understand such things now, my darling, but

you will come to know more about them some day. And
would you mind my giving you a little good advice now?"
Helen would be very glad of it, and would thankfully

receive it, she said, looking trustfully into the matron's face.
"It isn't much that I shall say, dear," said Sarah, "so you
needn't be afraid of my preachment. It is only this, Helen if
you ever fancy that any person—of course I mean a
gentleman, and a young one—loves you, or wants you to
love him, or if you believe you do love him, in a certain sort
of way, you know, so as that you think he wants you to be
his wife, or you seem to feel you would like him to be your
husband, don't make fun of him, dear; and don't think it
clever to tease him and plague him out of his life almost.
For this isn't the way to get love, or to keep it, and nobody
knows what harm may be done without intending it. Love-
making and marrying are serious things, dear, though
young people don't always think so."
Helen promised, of course, that she would bear her

friend's advice in mind whenever there should be occasion.
But she none the less continued to wonder at all she had
heard.
If it had been twice as strange and curious as it was,

however, it would for the time have been driven out of her
mind by a letter which awaited her on the dressing-table in
her pretty bower, and which Austin, the postman, had
delivered during her absence. It was from her father,
announcing that on a certain day near at hand, he and Mr.
Tincroft would be reaching home, and adding the cheering
intelligence that he felt stronger and better than when he
said good-bye to her so many weeks ago.
CHAPTER XXVII.
ELIZABETH'S GRIEVANCES.
IT was quite true that Walter Wilson's state of health

seemed to improve during his prolonged sojourn in his
native place. But it was not his home now—(where, indeed,
was his home?)—and he was after a short time made to
feel, in a certain sort of way, that his visit had been
sufficiently extended. I daresay if he had chosen to reveal in
full the state of his worldly affairs, he would have been
made more welcome than he was to the hospitalities of Low
Beech. But to gratify a whim of his own, or for some other
reason, he kept this knowledge locked up in his own breast,
except so far as he had shared it with his confidential man
of business.
So, in the end, notwithstanding the hopes he had at

first raised at Low Beech, it came to be considered that
Walter was come home no better than he went out, or
perhaps rather worse than better.
There are other vices in the world besides those that
brand all those who practise them with disrepute, and
eventually with infamy. Mark Wilson, as we have seen, gave
himself up to the love of drink, adding drunkenness to
thirst, till he brought himself to poverty, disgrace, ruin, and
death. On the other hand, Matthew Wilson, sober,
industrious; plodding, highly respectable, and positively
fancying that God was pleased with him, and was rewarding
him by increasing his property, gave himself up to the love
of money, adding penny to penny and pound to pound, till
he had the repute of being wealthy, and was lauded
accordingly; for "men will praise thee when thou doest well
to thyself."
But covetousness is no less a vice than intemperance. It

is equally detestable in God's sight, and its effects on the
human soul are equally debasing. Its effect on Matthew's
soul was to destroy, or at least to weaken, natural affection,
and to make him calculate, after a while, how much it was
costing him to entertain his son; just as he knew, almost to
a fraction, how much in money value was consumed, day by
day, by each inmate in his house. No doubt he was glad
when Walter, whom he had thought long dead,
unexpectedly made his appearance; and, for a time, his
detestable (I beg pardon, his most respectable) vice of
avarice (for he was avaricious as well as covetous) was held
in abeyance.
But when a full month had elapsed, and the returned

son gave no sign of opulence, Matthew's ruling passion
regained its sway. Here was Walter come back, most likely
poor, in ill-health, and with a daughter for somebody to
support. It was all very well for Mr. Tincroft to say what he
had said about nobody needing to be troubled on that
score, but who was to make Mr. Tincroft keep to his word
when it came to the pinch?
The same feelings influenced other members of the
family to a degree. Even the poor mother had been so
accustomed to scrape together pence that, though Walter
was her son, she felt uneasy when she thought of the
possibility of having him to keep, nobody knew how long.
And the brothers—well, they were pleased enough, no
doubt—at least, they said they were—to see Walter again;
and they made him welcome, after their fashion, at their
several homes. But they knew what money was made of,
and what it was made for, as well as most people; at least,
they thought they did, and it would have done no good to
try to convince them that they were altogether mistaken.
And by this time they had come to the conclusion, each in
his own mind, that Walter would be after wanting "some of
the old man's money to take a farm with, or to set up in
business with," and then there would be so much the less
for them to share by-and-by. So their welcome at last
became less cordial and more perforce.
The only one who did not share in these forebodings

was the daughter and sister. Elizabeth had always been fond
of her brother Walter; even when she, so many years ago,
had so heartily and strenuously set herself to make mischief
between him and their cousin Sarah, she honestly believed
she was doing it for his good, and was attempting, in the
only way she knew how, to undo the mischief which she at
first had a hand in, when she believed her uncle Mark to
have money, which Sarah would eventually inherit.
We have seen how, afterwards, she came to be sorry for

the part she had taken in separating the lovers. And now,
when she looked at Walter's wan countenance, and watched
his tottering steps, love and sorrow welled up from her full
heart in a mingled current, the more that she believed, with
the rest, in her brother's comparative poverty, and traced it
all, or much of it, to herself, in having driven him away from
England, where he was getting on so well.
Hitherto Elizabeth had not had much opportunity of

conversing with Walter, for at Low Beech every one had his
or her share of hard work to perform, which filled up every
hour of the day, leaving little time for what would have been
called idling.
One fine afternoon however—and it happened to be the

same day as that on which Sarah and Helen, three hundred
miles away, had their chat under the beech tree—Walter
announced his intention of walking up to High Beech Farm,
to take leave of his brother George's wife, and he asked
Elizabeth to bear him company, and assist him with her
stronger arm.
After some little demur, leave of absence was granted

by Mrs. Matthew, and the brother and sister set out
together. For some time they walked on in silence; but
presently Walter spoke.
"You don't seem very happy, Elizabeth. I have been

trying to get a chat with you alone all the time I have been
here, and haven't been able; but I have watched and
noticed you. There's something on your mind, I think."
"Why, Walter, what should there be?" said Elizabeth,

with assumed lightness of speech. And then she added,
more quickly, and with evident feeling, "It does not make
one any the happier, Walter, to see you in such a poor way."
"Then I had better not have come to the old place to

see you at all, if that makes you sorrowful," said the invalid
brother.
"Oh, I don't say so, Walter. Of course, it was a very
pleasant surprise when you came in so unexpectedly; but
when that feeling went off, it gave way, perhaps, to another
sort of feeling, when we saw you looking so bad, and
showing such signs of weakness and illness."
"Do you think so? I have rather fancied, now, that

father and mother, and the rest of them, except yourself,
don't seem to mind it much."
"There are different ways of showing such things,"

Elizabeth remarked. And then she added, "But very likely I
have felt more than the others have done. You and I were
always good friends, Walter, till—" and here she stopped
short.
"Yes, always good friends, Elizabeth. They were happy

times when you and I used to play together in the old barn,
and go out gathering primroses and violets in spring, and
blackberries in autumn, all alone by ourselves," said Walter,
with a sigh.
"They were too happy to last, Walter; but, you know, I

never took to either of the others as I did to you, even
when we were all children. They were mostly ready to
quarrel with me if I didn't let them have their way, and they
were younger than me. But it was different with you; you
were older than me, and you always took my part, and we
shared what we either of us had; and if it hadn't been for—
oh dear, oh dear!" And here the sister could not restrain
herself, but broke into loud, sorrowful lamentations.
"Don't distress yourself, Elizabeth dear. We always were

good friends, as you say, and so we are now. And it being
so, let us talk to one another as we used to do when we
went hand in hand over the fields together, telling our little
secrets and troubles."
"Oh, Walter, but we are man and woman now!"
"But brother and sister too; nothing can alter that. And
I want you to tell me if there isn't something here at your
home—" (Walter could not bring himself to say our home,
or my old home)—"something at your home that makes you
unhappy?"
"Well, come to that, there are a good many things not

altogether agreeable," Elizabeth answered, more
composedly, and yet with apparent bitterness of feeling; "it
is not pleasant to be treated as a child, as I many times am,
and at forty years old, too, if a day, as you know, Walter."
"Yes, of course you are," said the brother; "but I should

have thought you had known how to hold your own too, and
would not have allowed any one to put upon you, or treat
you as a child, as you say. I think I have noticed a good
deal of spirit in you at times, Elizabeth."
"Yes, likely enough in some things. There are some

things that none of them, not even father, cares to say to
me, nor even to talk about when I am by; and he knows the
reason why. But when it comes to work—about the house, I
mean—and how it is to be done, and who is to do it, I am
just nobody to be considered," said the sister. "There isn't a
servant girl in the place slaves as I do, Walter; and that you
must have seen."
Walter had seen that his sister worked very hard, was
up early in the morning, was the last to go to bed, and
seemed to have her hands full of household matters all day
long. He said this.
"Well, then, isn't that enough to make one go wild with
vexation? But that isn't the worst. You heard what mother
said to me only yesterday at dinner-time? The servant girl
there to hear it too?"
"Well, it was something I did not quite understand,

about some Smith or other; but I saw it made you very
angry, so that you left the room."
"Yes, I should think so, to be insulted in that way! It

was a shame, and that is how they go on with me, as if it
was my fault not being married. But it all serves me right, it
does!" And then poor Elizabeth made known to her brother
the great grievance of her life, adding—
"And ever since then, whenever I have wanted to buy

anything for myself, and have had to get the money out of
them, I am sure to be told of it. And father is as bad as
another about it every bit, for he is getting more stingy
than ever, and it is as much as I can do to get a decent
Sunday dress or bonnet; as you must have seen how old
mine are," continued Elizabeth, ready to cry with vexation.
"Don't distress yourself about that, Elizabeth," said

Walter, soothingly; "perhaps that trouble can be remedied
easier than you think for. I haven't said much about it, but I
happen to have a little money more than I want, and before
I go—But, my dear, I am feeling very faint."
He said this with difficulty and panting. "I think the walk
has been too much for my strength; I must rest
somewhere."
It was evident to Elizabeth, now that she turned her

eyes on him, that her brother was fearfully exhausted. The
walk from Low Beech to High Beech was not a long one, but
it was all up hill, and the afternoon sun beat upon them
hotly. Plainly, Walter had overtaxed his strength.
Fortunately, as it seemed, they were near George's farm
now, and there they could rest. Still nearer to them was the
garden gate—that gate which opened into the filbert alley,
with the holly arbour at the end of it, which Walter had such
good cause for remembering, and which he had not yet
cared to revisit.
"Let us go into the summer-house before we go

indoors," said Walter, painfully; "it will be cool there, and we
can have our talk out all by ourselves when I am rested a
bit."
And so the garden gate was passed through, and the

brother and sister walked silently up the alley, and Elizabeth
took off her shawl and wrapped it carefully round Walter, so
that he should not get chilled, she said.
And Walter with unwonted tenderness, took his sister's

hand, roughened by hard work, and put it to his lips, and a
tear fell upon it in the short moment that he held it there.
All this Elizabeth afterwards remembered.
There are times when hard, practical men and women,

who, if they have feelings, think it a weakness to make
display of them, seem to lose their boasted self-command
and become as little children. It was so with Elizabeth
Wilson, as she sat in the holly arbour with her hand still
clasped in her brother's. It may be that the sight of his pale
face, rendered more ghastly by the dark beard which
concealed the lower part of it, and of his shrunken limbs,
and the touch of the weak, bony, nerveless hand which held
hers in its cold clasp, had something to do with the change
which came over her. Or perhaps the kind, gentle, brotherly
tone Walter had adopted towards her in their previous
conversation softened her. But whatever might be the
cause, her rugged temper broke down, and tears which she
at most times would have scorned to see on another
woman's face, and which rarely moistened her own, at any
rate when there were any to see them, began to run down
her cheeks without any attempt on her part to check or to
hide them. Presently she spoke.
"Oh, Walter, if we could always have been children!" she

sobbed.
"It wouldn't have been good for us, I fancy," said the
brother, quietly.
"I know it couldn't have been, except we had died

before we could be grown-up; and then we should have
been children always and for ever, I suppose?"
"We can be children now, in one sense," said Walter.

"The Bible tells us that except we be converted and become
as little children, we cannot see the kingdom of heaven. I
should like to think of us both as being children in that
way."
"Oh, Walter, I wish you could teach me that way, and

help me on in it, for I am very, very miserable sometimes;
and I know I am not fit for anything good."
"My dear Elizabeth, I suppose we are none of us fit for

anything good till we are made so by a power above our
own; but we can ask for that power, you know."
"Yes, that is what we are told always, every Sunday at

least, in church; but somehow—But I don't want to be
talking about myself, and don't mean to," she added,
suddenly breaking off, and, as it seemed, angry with herself
for showing any emotion. "Only I was saying that if we had
always been children together, I shouldn't have been such a
mischief-maker as I was afterwards; and you might have
stopped in England, and got rich, and been well at this
present time, and—there! How stupid that is, for if we had
never grown-up, you wouldn't have been able to get money,
I expect; and I don't know what I am saying, only I mean
that everything would have been so different from what it
is; you know it would, Walter."
Elizabeth said all this so rapidly and earnestly, though

confusedly, that it seemed as though she were battling with
some inward foe whom she was determined to beat down
by force of words, if not of argument. She spoke so
earnestly that her brother, weak and suffering as he was,
could not help smiling.
"I daresay many things would have been different,

Elizabeth, if certain other things had not happened, or had
not been spoken," said he; "but perhaps they wouldn't have
been better, after all."
"I wish you could make that plain to me, Walter."
"Which I am not able to do, because I don't know how

matters might have turned out. But if I were you, or if I
might advise you, I would not trouble myself about such
uncertainties."
Elizabeth, however, did trouble herself. She had the

trouble on her mind, she said, and she must get it off
somehow, if she could. And then she went on to make her
humble confession of the way in which she had traduced her
cousin, and the motives which actuated her.
"I thought it would be a good thing for you, Walter, to

have done with Sarah for ever; and I didn't care, at that
time, what became of her. It was very wicked, I know, and I
have been properly punished for it in more ways than one. I
did it without intending it, at the time; I mean, I didn't
intend to do so much mischief; but if I had known how
things would have turned out, I wouldn't have touched it
with my little finger, even—I wouldn't. And now I want you
to tell me that you forgive me, Walter," she added, laying
her hand on his, and looking earnestly and imploringly into
his face.
"If there is anything to forgive, I do forgive you with all

my heart," said Walter; "and if it will be any comfort to you
to believe that all has turned out for the best, I should like
you to know it."
And then he went on to tell something of his domestic

life in Australia, and of the blessing it had been to him to
have a teacher and guide in the woman whom he had had
the happiness to call his wife.
"And I am very glad to know that my cousin has so

pleasant a home, and so worthy a man for a husband, and
is so happy as I have seen her. You see, Elizabeth, if things
had gone on in the way that was thought of at one time, the
great likelihood is that, after a few years, Sarah and I
should have got tired of one another; and, whether we had
or not, I wasn't fit or able to teach her anything, or to help
her on in anything good; and she, poor thing, wouldn't have
known how to set about teaching me. And so we might
have gone muddling on till now, nobody knows how. And I
haven't a doubt that everything has turned out for the best,
and if not in your way exactly, why, it was in a better way, if
you would only look at it in that light."
There was a long silence after this, for Walter was

wearied, and, closing his eyes, he sank into a deep slumber,
as it seemed to his sister, who, after readjusting the shawl
so as to more effectually protect his frail form from cold,
quietly awaited his awakening.
Yet not idly. Elizabeth was one of those women whose

hands are taught never to be idle, and who always contrive
to have a pocket full (or two pockets full, for that matter) of
material and implements for any unexpected half-hour of
vacancy or leisure. On this occasion, therefore, she had
recourse to this never-failing reserve fund of feminine
industry. If she had been a man, and it had been in the
present degenerate days of tobacco-smoking, she, or he
rather, would probably have taken out a cigar-case or a
tobacco-pouch, with their needful accompaniments: but
being what and who she was, Elizabeth Wilson was soon
busy at some kind of needlework.
And while thus engaged, her thoughts wandered back

into the far-off time of which she had been speaking. And
especially she remembered one occasion on which that self-
same holly arbour had witnessed a scene which she never
thought of now without deep remorse.
She had not often since then revisited that arbour, and
now the whole scene was reacted in her imagination. There
sat John Tincroft, almost in the identical place now occupied
by her brother; and here, where she herself was resting,
had been seated her cousin Sarah, busy with her needle,
when she broke in upon the two, so cruelly afterwards to
traduce them!
CHAPTER XXVIII.
THE LAST OF THE HOLLY ARBOUR.
TOM GRIGSON was still staying at his brother's—yet not

altogether there, for he and the younger Tom, his first-born,
pretty equally divided their time between the Manor House
and the Mumbles, where the elder Elliston continued to
sway the sceptre—an old man now, but as sharp-witted and
fond of having his own way as ever he had been.
It was the more to be wondered at that the active man

of business, such as we have seen John's old friend had
become, should have taken so long a holiday, seeing that
there was neither hunting nor shooting to be indulged in at
this particular time. To be sure, he had the pleasure of
Tincroft's company; and his presence, in like manner,
reconciled John to his prolonged absence from home.
But there was another reason—one closely connected

with the future family arrangements of Mr. Tom Grigson—
which made divers consultations at headquarters thought to
be necessary—the headquarters in this case being
Mumbleton on the one hand, and the Manor House on the
other.
On the same day as that on which, so far-away, his

Sarah and the young Helen were holding their confabulation
under the beech tree, and on which, also, so much nearer
to him, the brother and sister were talking together on their
way to and in the holly arbour at High Beech, John Tincroft
was invited by his friend Tom to take a drive with him over
to the Mumbles. On this occasion John did not decline the
invitation as he did a former one, some twenty years
before. Accordingly the dog-cart was got out, and the
gentlemen took their seats.
"I want a bit of a talk with you, John, and I want your
advice as well," said Tom, when the vehicle was in motion.
But in order to prepare for this "bit of talk," some few

words of explanation are necessary.
We have seen in a former part of our history, how Tom

Grigson's soul revolted from the contamination of trade,
which, no doubt, he would have called low, mean,
degrading, demoralising, and a dozen other "ings," if he
could have readily laid his tongue to them; and which
strong aversion nothing but his love for the fair Kate could
have induced him to overcome. We have also seen how,
after a time, this aversion gradually changed to something
like affection; that, at any rate, the golden result of his
enforced connection with trade a good deal more than
modified his opinions. More than modified! Why, there was
not a man within the sound of Bow Bells who could
discourse more warmly and eloquently on the dignity of
trade and commerce, and of the great advantages they
conferred on a country.
"Talk of our being a nation of shopkeepers," said he;

"granted, so we are, and it is the shopkeepers that can beat
all the world!"
There was no sham about this, either. Tom Grigson

believed in himself, and always had done. And here he had
the advantage of some shams and humbugs who are to be
met with, even in high places sometimes, and of whom you
and I, reader, may happen to know or see somewhat
occasionally, who do not believe in themselves, and in
whom nobody believes. Tom was more like some who are to
be met with in this changeable world, who undergo a sort of
natural and gradual transformation in the course of their
lives.
As, for instance, one who, from being a red-hot Radical

in his teens, has subsided in his riper years into a steady-
going Conservative, not to say a determined Tory. And so
the case might be reversed, or the principle applied to other
instances in polemics, or even in habits of everyday life.
Conviction sometimes, sometimes experience, necessarily
partial in its operation, and oftentimes interest, are the
several, or the combined, powers made instrumental in this
change of thought.
It was so, at least, with Tom Grigson. He had begun
with a silly, ignorant prejudice against trade and tradesmen,
and any thing or person connected with these
abominations, as he would have termed them. He ended
with a prejudice equally absurd against almost all other
classes of the community. All honour to Tom; he was, as I
have said, sincere. If he had been a farmer, he would have
stood up as sincerely for the farming interest; if a lawyer or
an artist, he would have exalted the profession he belonged
to the skies; if a— But I must rein in my Pegasus.
Much as Tom reined in his, just as he and John got into

the road turning out of Richard Grigson's lawn, and high
bred and fed Peg (Richard Grigson's blood mare) first of all
shied at a heap of stones by the roadside, and would then
fairly have bolted with the dog-cart and its passengers, but
for the judicious action of the curb for restraint, and of the
whip for punishment. This little episode over, and Peg
subsiding into a more sober pace, Tom began:
"I want to talk to you about my boy; you have seen

something of him during the last month. What do you think
of him?"
"Think? He is a fine young fellow," said John,

thoughtfully.
"Oh, fine! Ah yes; that is to say, he stands five feet

eight in his stockings already, and will mount up to six feet,
I daresay, before he has done growing. Fine! Well, he is
something like me in figure and face, they say, with his
mother's dark eyes and arched eyebrows superadded; so he
must be fine, I suppose." Tom said this half-jokingly, but
rather proudly also, no doubt; and then he added—

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1925 1950 1975 2000

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1930 1950 1975 2000

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1900 1925 1950 1975 2000

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Charter Schools: The Educational

John didn't understand; and he hinted as much.

"Why, aren't they all on my hands, more or less, Mr.

"And you wish me—let us understand one another, Mr.

"It would be only friendly in you to speak the word, if

"Then I am very glad that I cannot. But there are a few

"Being getting old, you see, Mr. Tincroft; and having

"That's very good of you to say so, Mr. Tincroft,"

"Until then," continued John, without heeding the

"But no offence, I hope, Mr. Tincroft?"

"No offence at all, sir," said John, shaking hands with