#12 Spring 1993
THIRD CIRCUIT UPHOLDS MANDATORY COMMUNITY
SERVICE FOR HIGH SCHOOL STUDENTS
l ACTIVITIES OF DIRECTORS AND OFFICERS
l TAFOL TO STAGE "MOOT COURT" PROGRAM AT
THE JEFFERSON SCHOOL
1993 Page 1
THIRD CIRCUIT UPHOLDS MANDATORY
COMMUNITY SERVICE FOR HIGH SCHOOL STUDENTS
The United States Court of Appeals for the Third Circuit
has upheld a program compelling high school students to perform
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
respect to the First Amendment challenge, the plaintiffs'
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.
sense would say that this is precisely the situation where
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
it is a mistake to dissect the phrase "involuntary servitude" into
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
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.
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.
Spring 1993 Page 2
ACTIVITIES OF DIRECTORS AND OFFICERS
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.
Texas Lawyer, a publication of American Lawyer Media, a
national publishing group and affiliate of Time-Warner,
asked Michael to draft a lengthy article on the issue of
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 TO STAGE "MOOT COURT" PROGRAM AT
THE JEFFERSON SCHOOL
program for the 1993 session of The Jefferson School will
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.