Cardozo’s win: Triumph follows tragedy

Monday, February 28, 2005

NASHVILLE, Tenn. — Triumph followed tragedy for Rachel Lubert and Rebecca Hagenson, second-year law students from the Benjamin N. Cardozo School of Law, Yeshiva University, who took top honors at the 15th Annual National First Amendment Moot Court Competition at the First Amendment Center at Vanderbilt University.

Lubert and Hagenson overcame not only 35 other teams from law schools across the country but also more personally the tragic death of their coach — third-year law student Liza Suckle — last week. “We dedicate this win to Liza,” Hagenson said. “We just wanted to come here and make her proud.”

The Feb. 24-25 competition featured two-person teams from 36 law schools arguing a hypothetical U.S. Supreme Court First Amendment case before panels of lawyers, law professors and judges.

The demanding competition requires the students to engage in the art of appellate advocacy — writing an appellate brief and answering challenging legal questions from the judges. The event requires a thorough understanding of First Amendment law, poise under pressure and mental gymnastics. Making the problem even more challenging, the student-teams were required to argue both sides of the case in different rounds.

The case
The fictional case of Vandalia Board of Education v. Anna G. presented the issue of whether a student’s artistic depiction of violence constituted protected expression.

School principal Caroline Schuman suspended Anna G. after she showed a comic-book-style, three-panel drawing titled “Justice” that featured a character (presumably Anna) contemplating the destruction of her school. The school board contended that in the age of the Columbine high school massacre such a drawing represented a true threat or a substantial disruption of the school environment. Anna G. countered that her art was a form of expression entitled to First Amendment protection.

The problem, written by Vanderbilt Moot Court Board member Amanda C. Jones under the direction of Vanderbilt law professor Tom McCoy, mirrors lower court cases across the country in which students have been punished for their artistic expression that school officials deem threatening.

“First Amendment rights of students regularly are colliding with school administrators’ concerns over safety and security, as well as an orderly education process,” said Gene Policinski, executive director of the First Amendment Center.

Final four
The final four teams were Benjamin N. Cardozo School of Law, University of Kentucky, University of California-Davis and Chicago-Kent College of Law.

The first semifinal pitted Brian Augustine and Babak Bakhtiari of Chicago-Kent representing petitioners Vandalia Board of Education and principal Schuman against Hagenson and Lubert of Cardozo, who represented Anna G.

In the second semifinal, Caleb Thomas and Thomas Goodwin of Kentucky represented the petitioners, while Danny Barak and Julie Burson of U.C. Davis represented Anna G.

The semifinalists argued before a four-judge panel of Sidney A. Fitzwater, U.S. district judge for the Northern District of Texas; William J. Haynes Jr., U.S. District Court for the Middle District of Tennessee; Marian F. Harrison, U.S. Bankruptcy Court for the Middle District of Tennessee; and Sven Erik Holmes, chief judge for the U.S. District Court for the Northern District of Oklahoma.

The judges uniformly praised the competitors’ efforts, hard work and skill. Judge Harrison told the students after the first semifinal: “I’d be honored to have any one of you four as my law clerk.” Judge Fitzwater told the students in the second semifinal: “I wish this had been the final round.”

Cardozo and Kentucky advanced to the final round.

Final-round arguments
One of the most difficult features of this competition is that the competitors often have to switch sides from round to round. Facing the heightened pressure of the final round, both teams had the challenge of switching clients from the semifinals.

The Cardozo team of Hagenson and Lubert had to argue the case for the petitioner, the Vandalia Board of Education, whereas in the semifinal they had argued for the respondent student. Likewise, the Kentucky team of Thomas and Goodwin switched sides from the semifinal round, representing student Anna G. in the final.

The competitors argued before a six-member “Supreme Court” that consisted of distinguished jurists, including:

  • Judge Todd Campbell, U.S. District Court for the Middle District of Tennessee
  • Judge Martha Craig Daughtrey, 6th U.S. Circuit Court of Appeals
  • Judge Robert Echols, U.S. District Court for the Middle District of Tennessee
  • Justice A.A. Birch, Tennessee Supreme Court
  • Judge Gilbert S. Merritt, 6th U.S. Circuit Court of Appeals
  • Judge Julia S. Gibbons, 6th U.S. Circuit Court of Appeals 

    Hagenson began the final round for Cardozo. She argued that the school officials should prevail because Anna G.’s drawings “constituted a true threat.” Hagenson observed that “school officials had an overriding interest in the safety of their students.”

    Her co-counsel and teammate Lubert told the court that “Anna G.’s graphic depiction of violence represented a significant risk of material disruption to the educational environment at Compton Junior High School.” She added that the Supreme Court should show deference to the concerns of the school board in the Columbine age.
    Thomas argued first for Kentucky, opening with, “The First Amendment is the hallmark of our democratic system.” He extolled the importance of freedom of expression by quoting from Justice Louis Brandeis’ concurring opinion in Whitney v. California (1927): “The freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth.” He argued that Anna G.’s drawing did not constitute a true threat.

    Goodwin followed by arguing that “There was no evidence that Anna G.’s drawing posed a significant risk of disruption” of the school within the meaning of the seminal 1969 student free-speech case Tinker v. Des Moines Independent Comm. School Dist.
    Lubert following with a short but effective rebuttal, comparing Anna’s drawing to violent essays written by the Columbine killers, Dylan Klebold and Eric Harris. “There is a not a person in this courtroom today who doesn’t think that essay posed a significant risk of disruption,” Lubert told the court. “The point is that schools cannot and should not have to wait” for actual violence to occur.

    The judges peppered the student advocates with many challenging questions, showcasing a Socratic dialogue between judges and attorneys. Their questions explored the hazy line between protected student speech and unprotected true threats in a time when school officials must pay particular attention to protect students from violence.
    Should the “substantial disruption” standard from Tinker, some of the judges asked, be modified to acknowledge an intensely safety-conscious world? Or were the school officials punishing thought with their imposition of discipline? Could the adverse reaction of one student to Anna’s drawings (in this case a cheerleader) form the basis of a substantial disruption?

    All the advocates performed with poise under the pressure of questioning and the potential distraction of seeing their faces projected on a big video screen behind the judges.
    “Chief Justice” A.A. Birch praised all of the competitors, calling their presentations “spirited and well-conducted,” before announcing Cardozo as the winning team. “The difference between the two teams was infinitesimal,” Birch said.

    Judge Daughtrey said later in an interview: “All four of the final competitors were excellent. These two young women were simply superb. They are going to make fabulous advocates.”
    Finalists’ reaction
    The future advocates said the victory meant an especially great deal to them in light of the recent tragedy of the death of their coach. “You just don’t know how much we put into this competition,” Hagenson said. “We tried to do what Liza would have wanted us to do. We’re here for her.”

    “It was really exciting,” she said. “It was such a well-run competition. It was an absolute delight to argue before such amazing panels of judges.”
    Lubert said the competition meant much to her because “the First Amendment was the reason I came to law school.” The competition did not disappoint her. “It gave us compelling evidence that the First Amendment is so much alive and well in this country.”

    When asked what she learned about the First Amendment from the competition, Hagenson responded: “Everything. I am just now starting [Constitutional] Law II.”
    The runner-ups also praised the competition. “”It was a joy to argue in front of such experienced jurists,” said Thomas. “More than that, it was an absolute honor.” Goodwin agreed: “I wish every law student had this opportunity to argue in front of such a distinguished bench. It was a phenomenal, invaluable experience.”

    All four finalists said that the competition would help them immensely when they graduated into the real world of practicing law.
    Other reflections
    The finalists were not the only students who felt the Moot Court experience worthwhile.

    Cindy Simmons, a contestant from the University of Washington, said the competition and the problem only furthered her goal of one day teaching First Amendment law in a journalism program. Simmons, who was a journalist for 15 years before law school, said she learned much about First Amendment law in preparing for the competition.
    “The problem was a very good opportunity to really brainstorm about First Amendment rights in schools within the social context of Columbine,” she said. “It makes you realize just how solidly the U.S. Supreme Court has held onto the First Amendment in difficult times, affirming the enduring power of the First Amendment.”

    In his closing remarks, First Amendment Center founder John Seigenthaler thanked all the students for helping the Center celebrate the 15th year of the competition. He also urged the students to continue to think about the First Amendment and the importance of an independent judiciary.

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