#12 Spring 1993


#12 Spring 1993 Page 1


The United States Court of Appeals for the Third Circuit has upheld a program compelling high school students to perform community service.

The Court issued its opinion in Steirer v. Bethlehem Area School District on March 15, 1993. As reported in previous issues of the Bulletin, TAFOL had filed an amicus curiae brief in the case, to provide additional support for the plaintiffs' attempt to have the program ruled unconstitutional. The plaintiffs were students and parents who objected to a program that denies a high school diploma to any student who refuses to provide 60 hours of unpaid community service. The requirement was attacked as violating two basic constitutional guarantees: freedom of speech under the First Amendment, and freedom from involuntary servitude under the Thirteenth Amendment.

With respect to the First Amendment challenge, the plaintiffs' case faltered on the threshold issue of "speech"; where there is no speech, the amendment is not implicated. Here, the Court found that the students were not required to signify by speech or conduct, their agreement with the altruistic philosophy underlying the program. In other words, the mere performance of community service is not equivalent to indicating personal agreement with community service as a moral duty.

Common sense would say that this is precisely the situation where the Thirteenth Amendment prohibition against involuntary servitude should protect the students. After all, the plaintiffs argued, community service is "servitude," and those who don't want to perform the service would do so "involuntarily," and therefore we have "involuntary servitude." However, in a bit of epistemological legerdemain, the Court said: "[W]e believe that it is a mistake to dissect the phrase "involuntary servitude" into two components: instead it is more appropriate to consider whether, taking as a whole the set of conditions existing in the imposition of a mandatory community service program in a public high school, the students providing the services are in a condition of involuntary servitude." The Court then looked at the history of the Thirteenth Amendment and determined that it was designed to prevent conditions "akin to African slavery," where the victim's only alternative is a physical or legal punishment. Because the students had alternatives, such as enrolling in a private school, there was insufficient coercion to constitute involuntary servitude.

The Steirer case highlights the difficulty of convincing a court to address fundamental moral and legal principles when the court can resolve the particular dispute by referring instead to established constitutional jurisprudence that protects an entrenched public educational system.

The final step in the Steirer case would be a petition to the Supreme Court of the United States for a writ of certiorari. However, the plaintiffs have exhausted their funds. Unless a public interest law firm decides to donate its services, no appeal will be taken.

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As a result of TAFOL's involvement in Steirer, Tom Bowden was interviewed by members of the press. An item on the case appeared in The Wall Street Journal on March 17, 1993, quoting Tom on the likelihood of additional court challenges as mandatory service programs spread across the country. Also, Tom wrote an op-ed piece condemning mandatory community service; the Ayn Rand Institute graciously sent copies to its mailing list of op-ed page editors. In addition, TAFOL was contacted by the author of a forthcoming book on First Amendment issues in the public schools, requesting an interview and a packet of information about the Association.

#12 Spring 1993 Page 2


The appeal by the proponents of mandatory pro bono in Texas was argued in the Texas Court of Appeals in Dec-ember, 1992, but no ruling has been handed down yet. Michael Mazzone's brief against mandatory pro bono for lawyers was excerpted in The Houston Lawyer, The Advocate, and The Intellectual Activist. The Houston Lawyer is a publication of the Houston Bar Association. Michael reports that every response to the article was favorable. The Advocate is the Suffolk University Law School's journal, published twice each academic year.

The Texas Lawyer, a publication of American Lawyer Media, a national publishing group and affiliate of Time-Warner, Inc., has asked Michael to draft a lengthy article on the issue of mandatory IOLTA (interest on lawyers' Trust Funds) laws. IOLTA laws seize the interest income earned on clients' money in temporary awyer's trust accounts and then disperse that income to "public interest" legal groups. Michael wrote a brief on that issue in a pending case.

Tom Bowden testified before the Ways and Means Committee of the Maryland House of Delegates on February 26, 1993. The testimony was given in support of a bill that would have eradicated Maryland's mandatory community service program for public high school students. Maryland is believed to be the first, and only, state to enact such a program statewide. (The Steirer case, by contrast, involved a program enacted by only one local school district.) The testimony was well received by the sponsor of the bill, but the committee's reaction was mixed. Ultimately, the bill was not reported out of committee. Tom's testimony was given in his own individual capacity, not as a member of TAFOL's Board of Directors. TAFOL's tax-exempt status forbids it to advocate passage of particular legislation.


TAFOL's program for the 1993 session of The Jefferson School will be a variation on the popular format of past years. This year, TAFOL will stage a "moot court" program in which lawyers will present opposing arguments on several legal issues, as they would in an appellate court. An open discussion among presenters and audience members will follow. (Discussions at prior TJS-TAFOL programs have been very spirited.) The presentation will likely take place during the second week of the summer institute, in the evening. Topics currently under consideration include: punitive damages, licensing of trial lawyers, and prisoners' rights. Any lawyer members who wish to volunteer to participate as presenters should contact TAFOL as soon as possible at the address below. We also welcome suggestions for moot court topics.

Copyright © 1993 The Association for Objective Law. All rights reserved. The Association for Objective Law is a Missouri non-profit corporation whose purpose is to advance Objectivism, the philosophy of Ayn Rand, as the basis of a proper legal system.