Brooklyn Law School wins First Amendment Moot Court Competition
David Hudson
First Amendment Center
03.01.99
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Brooklyn Law School winners Sari Gabay and Robert Hoff.
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NASHVILLE, Tenn — Brooklyn Law School captured first place this weekend in the Ninth Annual National First Amendment Moot Court Competition, co-sponsored by the First Amendment Center and the Vanderbilt University School of Law.
The two-day competition featured participants from 36 law schools across the country engaging in the art of appellate advocacy — a process in which attorneys present legal arguments and perform mental gymnastics while often engaging in verbal swordplay with appeals court judges.
The students faced the daunting task of combining their command of First Amendment law and creative legal thinking against the rapid-fire questioning by actual attorneys, law professors and federal judges.
The competitors argued the hypothetical case of a high school student punished for posting a picture of a Confederate flag on her Web site, which she constructed during a "Communicating in Cyberspace" school class.
In the case created by the Vanderbilt Moot Court Board, student Maggie Sawyer sued Jackson High School and Principal David Barnes, contending her free-speech rights were violated when school officials deleted her Web page, removed her from the Internet class and denied her credit for the course.
The competition format featured students arguing before a three-judge panel of the U.S. Supreme Court. A federal district court had ruled in favor of school authorities, while the 6th U.S. Circuit Court of Appeals had reversed, ruling in favor of Sawyer.
Though "Barnes v. Sawyer" is an imaginary U.S. Supreme Court case, it reflects the current reality of First Amendment issues, as several high school students recently have been punished by school authorities for their speech on the Internet.
The law students argued their moot court case nearly 30 years to the day that the U.S. Supreme Court issued its landmark student-expression case, Tinker v. Des Moines Indep. Community Sch. Dist. It was in Tinker that the court recognized that students did not "shed their constitutional rights to freedom speech or expression at the schoolhouse gate."
"Three decades after the Supreme Court recognized the clear First Amendment rights of students in Tinker v. Des Moines, the battle for free speech in our public schools has never been hotter," said Ken Paulson, executive director of the First Amendment Center. "This year's Moot Court competition both reflects today's headlines and anticipates litigation to come."
During the event held on Feb. 26-27, the teams argued several early rounds before panels of three judges, composed mainly of attorneys in the Nashville area. Then, four teams — Brooklyn Law School, University of Arkansas School of Law, South Texas College of Law affiliated with Texas A&M; University and DePaul University College of Law — advanced to the semi-final rounds where they faced a panel of four federal judges, including:
- Judge Todd Campbell, U.S. District Court for the Middle District of Tennessee.
- Judge P. Michael Duffy, U.S. District Court for the District of South Carolina.
- Judge Sidney A. Fitzwater, U.S. District Court for the Northern District of Texas.
- Magistrate Judge William J. Haynes Jr., U.S. District Court for the Middle District of Tennessee
Final-round arguments
The final round pitted Brooklyn's Robert Hoff and Sari Gabay, arguing for Principal Barnes and Jackson High School, against Arkansas' Hastings Hanshaw and Kathy Ridenoure, arguing for Maggie Sawyer. The four student oralists faced questioning before a panel of five judges, including:
- Judge Richard S. Arnold, U.S. Court of Appeals for the 8th Circuit.
- Judge Gilbert S. Merritt, U.S. Court of Appeals for the 6th Circuit.
- Justice Adolpho A. Birch, Associate Justice of the Tennessee Supreme Court.
- Senior Judge Louis F. Oberdorfer, U.S. District Court for the District of Columbia.
- Judge Aleta A. Trauger, U.S. District Court for the Middle District of Tennessee
Gabay opened the arguments by telling the judges that Jackson High School had a legitimate pedagogical reason in preventing Sawyer from posting a picture of the Confederate flag on her Web page, which was accessible through the school's Web site.
Gabay argued that Sawyer's display of the Confederate flag on a Web page constructed on school grounds with school computers was school-sponsored expression that must be analyzed under the standard from the 1988 U.S. Supreme Court decision Hazelwood School Dist. v. Kuhlmeier.
In Hazelwood, the U.S. Supreme Court ruled that a school principal did not violate students' First Amendment rights when he deleted two articles from a high school newspaper written by a journalism class.
The court developed the so-called Hazelwood standard: "educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns."
Gabay told the judges that Jackson High had a legitimate educational reason to "dissociate itself from the display of the Confederate flag."
Gabay also argued that Jackson High and the school's Web server were nonpublic fora — locations where reasonable restrictions on speech can be implemented. "In Perry Education Assn. v. Perry Local Educators' Assn. (1983), this court stated that school facilities may only be deemed to be public forums when school officials have, by policy or practice, opened those facilities for indiscriminate use by the general public," Gabay said. "Mere access to the Internet does not change the nature of the forum without an affirmative intent to create a public forum."
Gabay's co-counsel Robert Hoff, who was selected as "Runner-up Best Oralist" for the competition, then contended that, even if the court determined Sawyer's speech was student-initiated rather than school-sponsored, Jackson High and the principal could still regulate the display of the flag under the 1969 Tinker decision.
In Tinker, the court ruled that school officials could not censor student expression unless they could "demonstrate facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities." The Supreme Court ruled in Tinker that school officials violated the First Amendment rights of several students when they suspended them for wearing black armbands to express opposition to the Vietnam conflict.
"The Confederate flag causes disruptions at Jackson High School," Hoff said. "No lower court has ever held ... that a school could not regulate the display of the Confederate flag by a student."
Arguing for Sawyer, Hastings Hanshaw countered that the student had engaged only in a "silent, passive means of expression" that caused no disruption.
When asked about lower federal court decisions allowing school officials to regulate student displays of the Confederate flag, Hanshaw responded that "the factual circumstances of those cases were completely different."
"There is no evidence on the record in this case that the Confederate flag on its face
would incite violence," he said.
Ridenoure, Hanshaw's co-counsel, argued forcefully that the actions of Jackson High officials were unconstitutional under both the Hazelwood and the Tinker standard. "School officials should not be allowed to go in with unbridled discretion and sweep Maggie Sawyer's constitutional rights under the rug," she said.
Ridenoure also noted that Sawyer's expression occurred in the "most quintessential open forum — the World Wide Web."
The judges asked many tough questions of the student advocates but also provided a few lighter moments. For instance, Merritt noted at one point that Arnold's 8th Circuit opinion in the Hazelwood litigation had been reversed by the U.S. Supreme Court. Arnold responded: "Now that I'm on this court (the moot U.S. Supreme Court), I wonder if we shouldn't overrule Hazelwood."
Verdict from the judges
The judges voted 3-2 in favor of the Brooklyn Law School team of Gabay, Hoff and Nichole Tuman.
In announcing the split decision, Justice Adolpho Birch Jr., who served as the chief justice, announced that the decision was "as mathematically close as possible under the circumstances" and "the margin of victory was very, very thin."
The judges universally applauded the excellence of advocacy skills displayed by the participants under the firing line.
"It's customary to say at these occasions that the advocates have done better than the normal advocates that we hear at oral arguments," Arnold said. "In this instance, I can say it not only because it's customary, but also because it's true."
Oberdorfer joked: "I particularly liked the times when I asked a dumb question and received a smart answer. I thought that was a sign of real skill."
After the competition, Merritt echoed the comments of Arnold by saying the level of skill displayed by the students exceeded that of most real-life appellate lawyers he saw. "They (the students) were better and more prepared than most attorneys who argue before the 6th Circuit. On balance, I would say that these students did a better job than three out of four attorneys who argue before the federal appeals court.
"The competition is very helpful for me as a judge with respect to First Amendment law. It keeps me more up-to-date," Merritt said. "Anytime you hear more cases on a particular subject matter, the more you are going to be educated on that subject."
"The law students in this competition are as skilled as many serious practitioners and obviously have very bright careers ahead of them," said Judge Campbell.
Reactions from victors, other participants
Hoff, Gabay and Tuman were thrilled with their victory. "It's incredible and a great experience to argue in front of these federal judges," Gabay said. "My adrenaline is just pumping."
Hoff called it a real "honor" to hone his advocacy skills before the judges. "It was truly an honor to argue in front of this distinguished panel of judges, including federal appeals court judges. It is especially gratifying to do so as a student, because I am not likely to have this honor for a long time in my career."
Hoff said he appreciated the opportunity at the moot court competition "to see people from different parts of the country and be exposed to their different views on the law and the art of appellate advocacy — both stylistically and substantively."
Other participants praised the competition as "the best" moot court they had ever attended. "This is the best moot court competition our school has ever entered," said Shaun Gutilla of semi-finalist DePaul University College of Law. "Everything was first-class from beginning to end."
Sean Hunt from Catholic University School of Law said he was impressed with "the caliber of all the judges from all the rounds."
"I received a lot of feedback and feel I learned a lot about appellate advocacy at this competition," he said.
The word students seemed to use more than any other in describing the competition was "unique."
First Amendment Center founder John Seigenthaler agreed with this assessment though perhaps for a different reason. "This Moot Court competition is unique because it gives law students from 36 different institutions the opportunity to immerse themselves in First Amendment law - a subject that in some law schools gets short-shrift," he said.
