law school writing sample
This writing sample is an excerpt taken from a longer Appellate Brief based on a hypothetical fact pattern for a first year Legal Research and Writing course.
OPINION BELOWThe Superior Court for the County of San Alfredo denied injunctive relief to the Plaintiffs, Parents for Better Schools, and held for the Defendants, Tamaroa School District. The order and opinion of the Superior Court is unreported. The Court of Appeal of the State of Bliss reversed the Superior Court’s judgment and granted declaratory judgment and injunctive relief against the Tamaroa School District. The opinion of the Court of Appeal is unreported but included in the transcript. (R. 15-17)
STATEMENT OF FACTSThe Appellees, fifty Wright High School parents organized as Parents for Better Schools ("Parents"), brought this action in the Superior Court for the County of San Alfredo in the State of Bliss seeking declaratory judgment and injunctive relief against the Appellants: the District, statutorily empowered by the State of Bliss to administer the educational facilities of the School; the Board; the Superintendent; and the principal of Wright High School ("Principal"). (R. 2) The Parents allege that the Appellants violated and denied Parents’ rights under the Fourteenth Amendment to the United States Constitution. (R. 1)
Parents for Better Schools was formed by a coalition of parents at Wright High School with the goal of reinvigorating parental activity within the schools. (R. 4) The Parents are representative of the student population’s broad racial, economic and religious diversity. (R. 4) The majority of the students are minority, and 15% live below the poverty line. (R. 3) Private schools are not an option for many due to the cost. (R. 3)
The District encompasses a large suburban area of Perfection, Bliss, and consists of three schools, of which Wright High School is one, of approximately 2,200 students each. (R. 3) The boundaries of the schools are geographically set, and parents are prohibited from changing their children’s public school. (R. 3) Education in the district is compulsory to the age of seventeen and parents can be fined and incarcerated for failure to comply with this law. (R. 3)
In August, 1994, the Bliss Department of Education adopted a resolution for service programs in its public school districts. (R. 3) In response to this resolution, the Board met in the fall of 1994 to develop a service program for the District. (R. 4) The Board directed the Superintendent to implement a program. (R. 4) The Superintendent submitted to the Board a pilot program of mandatory service set to begin that school year. He was persuaded to adopt this pilot program by Wright High School’s principal, despite her lack of expertise in the area of such programs. He failed to consult with parents or the Board on how the program was to be implemented.
The program mandated that students be assigned organizations at which they would work for 120 hours over the course of their high school education, to be performed off campus and not during school hours, and with no remuneration. The organizations would be selected by a school committee. (R. 5) Students would receive no direct supervision from the school, no transportation would be provided, and no substantive feedback given to the students regarding their service. (R. 5)
Prior to voting on the program, the Board heard from two experts. Mr. Miller, an attorney for the Alliance for Justice and Parental Rights, emphasized that such a program would intrude into family decisions, force students to volunteer, and is opposed by the state teachers’ association, 22 of 24 local school districts, and the Kirkwood PTA. (R. 7) He stated that the majority of the school’s students volunteer already, and are unenthusiastic about a mandatory program. (R. 7) Mr. Miller also commented that this "carrot" approach of forcing volunteerism may permanently alienate the students from community service, thus undermining the very values the District seeks to reinforce. (R. 7)
He also presented evidence that in programs where parents were permitted to opt their children out, only five to six percent of parents elected to opt out. (R. 7) One expert, representing a community service special interest group, cited the program as helping students develop better skills, and as a gap filler for the social safety net. (R. 6) Mr. Evans, president of the Parents, voiced his concern that the school was taking over his role as a parent. (R. 7) He also demonstrated that this program will create a hardship for the increasing number of students who are required to work in order to supplement their family’s income. (R. 8)
The program was implemented after a close vote by the Board. (R. 8) At the bench trial, evidence regarding the operation of the program during the prior year showed that twenty-five percent of the students did not make any progress towards the 120 hours of mandated service, and the remaining seventy-five percent made only "some strides" towards completion. Only six percent did the full thirty hours of work. (R. 12)
SUMMARY OF THE ARGUMENTThe Parents’ claim results from the Board’s implementation of a mandatory extracurricular program with no opt-out provision. This program burdens the parents liberty interest in the upbringing and education of their children, which a series of cases throughout the nineteenth century has been declared to be a fundamental liberty interest. This finding is supported by a long history and tradition supporting the upbringing and education of a child as the primary responsibility of parents, and not of the state.
The strict scrutiny test is applied to fundamental liberty interests, and would properly be applied to this program. The test requires the program to be narrowly tailored and promoting a necessary and compelling government interest. This experimental program fails this test. Withholding a diploma from students who are financially or academically unable to spend 120 hours doing mandatory service after school is coercive and burdensome. The lack of an opt-out clause or reasonable alternatives combined with the unusually lengthy service requirement demonstrates that the school could achieve its goals in a less restrictive manner. Further, the experimental program has failed to meet its goals.
Alternatively, the rational basis test applies to rights of a less fundamental nature, and requires that the program be reasonably related to a legitimate state objective. A mandatory extracurricular program does not meet this test. The goals of this program are vague and of arguably little benefit to the students, and the program has failed to meet those goals.
I. THE STRICT SCRUTINY TEST PROTECTS THE PARENTS’ FUNDAMENTAL LIBERTY INTEREST TO SUPERVISE THE EDUCATION AND UPBRINGING OF THEIR CHILDREN AGAINST A COERCIVE AND INVOLUNTARY EXTRACURRICULAR PROGRAM WHICH FAILS TO MEET A COMPELLING STATE INTEREST.A parent’s right to raise and educate their child is a fundamental liberty interest because of the long history and tradition in America of holding parents responsible for their children’s upbringing and education. The strict scrutiny test protects interests such as raising one’s child against coercive, burdensome programs requiring 120 hours of work outside of school which do not serve a compelling government interest in a narrowly tailored fashion. For this reason, the right of Parents to raise and educate their children should be protected against this experimental mandatory service program.
A. Parents have a fundamental liberty interest which has been established throughout this country’s history and case law to direct their children's education and upbringing.Parents have a constitutionally protected liberty interest to direct the education and upbringing of their children under the substantive due process clause of the Fourteenth Amendment of the United States Constitution. Liberty interests which have historically been classified as "fundamental" are those which are "implicit in the concept of ordered liberty," and "deeply rooted in this Nation’s history and tradition." Palko v. Connecticut, 302 U.S. 319, 325 (1937); Moore v. City of E. Cleveland, 431 U.S. 494, 503 (1977). A series of Supreme Court cases establishes a precedent that the parental liberty interest is included in the Fourteenth Amendment’s substantive due process protections.
The Supreme Court ruled against states forbidding foreign language instruction, stating that the parental liberty interest includes "the right of the individual to...establish a home and bring up children." Meyer v. Nebraska, 262 U.S. 390 (1923). The Court overturned an Oregon law prohibiting private schools, recognizing "the liberty of parents...to direct the upbringing and education of children under their control" and holding that "the child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations." Pierce v. Society of Sisters, 268 U.S. 510, 534 (1925). Amish parents have been permitted to withdraw their children from the public school system despite the state’s compulsory education laws. Recognizing "the fundamental interest of parents, as contrasted with that of the State, to guide the...education of their children," the Court found the basis for this liberty interest in "the history and culture of western civilization reflect[ing] a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition." While Yoder was based on the freedom of religion, the decision does not suggest that a parental liberty interest cannot also be found in other parts of the Constitution. Wisconsin v. Yoder, 406 U.S. 205 (1972).
The Court has held that "Constitutional interpretation has consistently recognized that the parents’ claim to authority...to direct the rearing of their children is basic to the structure of society." Ginsberg v. New York, 390 U.S. 629, 639 (1968) and that "care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder." Prince v. Massachusetts, 321 U.S. 158, 166 (1944). Long before schools were established in America, society expected parents to educate their children and prepare them for duties as citizens of America. Lifestyle changes have necessitated public schools, but there is a lengthy history and tradition of parents being the primary educators of children.
Finding the liberty interest to be fundamental gives parents who are taking an active interest in their children’s education tools with which to educate and raise their children. The liberty interest does not permit parents to "dictate the curriculum at the public school to which they have chosen to send their children." Brown v. Hot, Sexy & Safer Productions, 68 F. 3d 525 (1995). Finding a fundamental interest in this case, however, would not create this "slippery slope" problem. First, the issue at hand does not involve curriculum, as the program is to take place off campus, during non-school hours, and without school supervision. (R. 5) Second, the Parents did not choose to send their children to this school in light of the compulsory education law, enforceable by imprisonment, and the District’s prohibition of changing schools within the District. (R. 3)
The Supreme Court has repeatedly upheld that the parental liberty interest to raise and educate a child is a fundamental right which is primary to the state’s interest in children. Recognizing this interest is consistent with protecting individual liberty as well as the history and tradition of reserving to parents the responsibility to decide how their children should be raised.
B. The strict scrutiny test should be applied due to the fundamental liberty interest burdened by the involuntary program requiring 120 hours of work outside of school.
A fundamental liberty interest is protected by the strict scrutiny test against programs which fail to serve a compelling state interest in a narrowly tailored fashion. This level of scrutiny is needed to protect the right of a parent to raise and educate a child against coercive mandatory programs such as the one implemented by the Board. The Supreme Court has yet to rule on which level of scrutiny should apply to the parental liberty interest, but has repeatedly applied the strict scrutiny test to issues involving traditional and basic familial liberties, including the areas of contraception, abortion, religion and health care. Miranda Perry, Kids and Condoms, 63 U. Chi. L. Rev. 727 (1996). Extending the use of the test to educating and raising children is consistent with the Court’s previous decisions in Meyer, Pierce and Yoder which, as seen above, have held that the interest is fundamental. In Immediato v. Rye Neck School District, 73 F.3d 454 (1986) and Hendron v. Chapel Hill-Carboro City Schools, 89 F.3d 174 (1996), the lower courts incorrectly interpreted the Supreme Court’s decisions in the Meyer and Pierce cases as suggesting the application of the rational basis test. The Meyer and Pierce courts applied a scrutiny of "reasonableness" which looks much like the modern rational basis standard. However, the application of the standard, requiring that the legislation promote public health, safety, or other important public interests, is more indicative of a higher level of strict scrutiny. Joseph W. Ozmer II, Note: Who’s Raising The Kids, 30 Ga. L. Rev. 887 (1996). Further, Meyer and Pierce were decided well before the current "right to privacy" cases in which the Court, in 1961, established that the newer strict scrutiny test was the appropriate level of examination for infringement upon fundamental rights. Brown, 68 F. 3d at 525.
Where parental fundamental liberty interests are involved, limitations "may be justified only by a compelling state interest and that legislative enactment’s must be narrowly drawn to express only the legitimate state interest at stake." Roe v. Wade, 410 U.S. 113, 154 (1973). The parental interest is deserving of strict scrutiny when confronted with this program which interferes with the raising and education of a child through coercive means and presents a severe financial hardship.
C. This program fails the strict scrutiny test because it fails to fulfill a compelling state interest in a narrowly tailored fashion due to the coerciveness of the program, lack of adequate alternatives or an opt-out provision, and poor design leading to an inability to accomplish its goals.Education is a legitimate state interest, but this program does not serve that interest in a narrowly tailored fashion. Excluding parental involvement from the raising of a child impermissibly trespasses on parental rights by substituting the state in the place of parents, without demonstrating a compelling necessity. This mandatory program forces students to perform work outside of school hours to the benefit of organizations selected by the school, at least one of which is the subject of a criminal investigation. (R. 13) The community benefits from the physical labor of students, without providing students with a clear educational purpose backed with guidance and supervision. The Board is imposing upon students an experimental program, without providing alternatives to those with valid hardships. Such a restrictive policy for an experimental pilot program is certainly not narrowly tailored, and not the least restrictive means of accomplishing the Board’s goals.
The Curtis court stated that the coercion "exists where the governmental action is mandatory and provides no outlet for the parents, such as where refusal to participate results in a sanction or expulsion." Curtis v. School Comm. of Falmouth, 420 Mass. 749, 751 (1995). In Meyer, the court concluded that the state interest in promoting "civic development" could not be "coerced by methods which conflict with the Constitution – a desirable end cannot be promoted by prohibited means." Meyer v. Nebraska, 262 U.S. 390, 401 (1923). This program uses coercive means to further its questionable ends by withholding a diploma unless a student spends 120 hours outside of school in an program of disputed educational value. The lack of an opt-out provision means that parents’ only option is to withhold their children from public schools. Private schools or home schooling is not an option for these parents, 15% of whom are below the poverty line.
Students will be prohibited from graduating if they do not participate in this program. These students will have a bleak future, as jobs above minimum wage are largely unavailable to persons without a high school degree. The alternative is a GED, an inadequate and harmful alternative as employers and colleges do not see this as equivalent to a diploma.
The high portion of minority students and high percentage of families living below the poverty line has caused an increase in the number of students who have to work after school to help support their families, according to Mr. Evans, the president of the parents’ association. (R. 8) The 120 hours of mandatory service time, which takes away from students’ abilities to financially support their families, coupled with the Board’s refusal to provide transportation to the sites, equates to a severe financial hardship on the families.
Parents are in a better position than the Board to make decisions to enhance their child’s welfare and to provide their child with opportunities for advancement and growth through truly voluntary community service programs. An opt-out provision respects those parents who wish to take responsibility for their children and enables parents to act in the best interests of their children, while providing other students with opportunities for volunteering through the school. The lack of an opt-out provision assumes that responsible and concerned parents, such as the Appellees, do not know what is in their child’s best interest or cannot be trusted to act according to that interest. There is no evidence to support this assumption. Mr. Miller, one of the experts who testified at the Board meetings, stated that studies of condom distribution programs demonstrate that where parents are allowed to opt-out, only 5-6% do this. (R. 7) Therefore, it is questionable why the school Board did not allow an opt-out provision in this experimental program which has no alternatives. Eliminating the primary decision maker, who is best-suited and most informed as to the proper upbringing and education of the child in no way furthers the state’s interests.
Condom distribution programs have voluntary participation and alternatives such as home instruction. Further, AIDS and teen pregnancy establish a compelling state interest. Allowing an opt-out for parents who provide similar instruction at home, i.e. volunteering privately, would be similar to mandatory classroom sex instruction which allowed opt-out for parents who gave similar instruction at home. Polls show that in this District, 60% of students volunteer on their own, without the need of a costly, coercive mandatory program, evidence that program is not reasonably necessary to encourage volunteerism.
The program is also wholly ineffective and poorly designed, therefore failing to meet the requirement of a narrowly tailored program necessary to fulfilling a compelling state interest. The program provides absolutely no direct supervision by the school and no feedback to the students about their experience. Given this lack of guidance and responsiveness from the school to the students in the program, there can be no viable claim that education is taking place. This flaw has caused the program to fail in its goals. During the 1995-1996 school year, only 6% of the students accomplished the full thirty hours of work; 25% did not make any progress in the program at all; the remaining students made only "some strides" towards completion. (R. 12)
This failure is also indicative of the counterproductive nature of a program touting mandatory volunteerism. The program assigns students where to "volunteer," and are discouraged from doing their own volunteer work because the 120 hour requirement is being forced upon them. Therefore the 60% of the students who were already volunteering on their own accord (R. 7) will now have to spend their time fulfilling the mandatory volunteer position, and most likely being less productive. This is evidenced by the testimony of several students at the trial who indicated that their work was unproductive and not educational. (R. 13)
The coercion and burdens which this program places upon the parents are not the least restrictive nor the most narrowly tailored means of accomplishing the Board’s goal of educating children. A complete lack of viable alternatives demonstrates that the Board is unreasonably restricting the rights of the parents and not tailoring the program as narrowly as possible. Community service can benefit both community agencies and students, but the benefits can be achieved by utilizing several alternatives to a mandatory program while not affecting parental rights.
There is no evidence that parental exclusion regarding their children’s involvement in this program is beneficial to the program’s success. This is a divisive measure which will outrage parents and result in costly litigation, while offering little in the way of countervailing benefit. This could be avoided by simply including parents in choices made about their children’s education.
II. PARENTS’ LIBERTY INTEREST IS ALTERNATIVELY PROTECTED BY THE RATIONAL BASIS TEST AGAINST THIS COERCIVE AND INVOLUNTARY PROGRAM WHICH LACKS A REASONABLE RELATIONSHIP TO A LEGITIMATE GOVERNMENTAL OBJECTIVE.As an alternative to the strict scrutiny test, the parents’ liberty interest in the upbringing and education of their children can also be examined under the rational basis test. This test requires a regulation to be reasonably related to a legitimate government objective. While education is such an objective, the Board may not use a program which is more coercive and presents a greater hardship to the parents than is needed to achieve those goals. This program does not meet the rational basis test because of the coercion and hardships presented in the implementation of the program.
A. The parents’ liberty interest in directing their children’s education and upbringing is protected by the rational basis test from an involuntary program which requires extensive work outside of school.If the parents’ right to raise and educate their children is deemed not to be a fundamental right, the rational basis test would likely be used to evaluate the mandatory program. The rational basis test requires that the governmental regulation in question be "reasonably related to a legitimate state objective" Daniel Stefaniuk, No Service, No Diploma, 14 T.M. Cooley L. Rev. 149, 163 (1997). Parents do not contest that their parental liberty interest in educating their child is subject to reasonable government regulation, and that compulsory education does not violate Parents’ liberty right under the rational basis review. However, even under the rational basis test the state’s power to institute mandatory programs is limited.
Foreign language restriction has been prohibited in Meyer v. Nebraska, 262 U.S. 390, as have laws banning private schools in Pierce v. Society of Sisters, 268 U.S. 510, 534 and even compulsory education has been rejected in light of a religious belief, Wisconsin v. Yoder, 406 U.S. 205. These cases demonstrate that the rational basis test requires that the level of government intervention be kept to a level of minimal interference. Even though the governmental purpose may be legitimate and substantial, its purpose cannot be pursued by means that broadly stifle personal liberties when the same end can be more narrowly achieved. Roe, 410 U.S. at 154.
B. This program fails to pass the rational basis test as it does not bear a reasonable relationship to a legitimate governmental objective because of its coercive means, lack of adequate alternatives, and lack of relationship to an educational and governmental function.This program coerces parents into submitting their children to this mandatory program without allowing parents or students feasible alternatives in the face of coercion and severe financial hardship. The Immediato and Hendron cases, supra, which have previously upheld mandatory programs under the rational basis test, are to be differentiated from this case because those programs involved less than half the number of hours in this case, reflecting that the burden imposed upon the students and the parents was significantly less. Further, the families in this case are under a financial hardship which results in their children being unable to participate in the program due to familial obligations. The facts examined above also indicate that the program has failed to meet its goals, and is therefore not reasonably related to the government’s purpose of education.
The Board argues that the legitimate state objective is citizenship training. Instilling civics in a child is the responsibility of the parents, not the schools; therefore, the purpose which the Board sets forth is in fact reserved to the parents: "Care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder." Prince v. Massachusetts, 321 U.S. 158, 166 (1944). The facts examined above also indicate that this program has largely failed to achieve its goals. (R. 12) Therefore, this program should not be permitted to continue without viable alternatives or an opt-out provision.
The Immediato court placed limits upon how far a mandatory program such as this one can go in coercing and posing hardships on parents. "The District was reasonable in concluding that these goals were best achieved by having students actually perform service for a limited amount of time, and discuss that service." Immediato v. Rye Neck School District, 73 F.3d 454, 462 (1986). This case is distinguished from Immediato which only required 40 hours; this case requires 120. Further, the program in this case has no provision for the students to discuss the service with their teachers or classmates, which would otherwise indicate its goal to be education.
This program bears no reasonable relation to education of children. Its poor design, coercion and hardship, and failure to succeed in its educational goals distinguish this program from one which is designed to educate students. The program does not bear a reasonable relation to a valid governmental interest and for that reason does not pass the rational basis test and is therefore unconstitutional.
CONCLUSIONFor the foregoing reasons, the decision of the Court of Appeal of the State of Bliss granting declaratory judgment and injunctive relief against the Tamaroa School District should be affirmed.