South Texas captures top honors in First Amendment Moot Court Competition

Monday, April 2, 2001
South Texas winners Shalimar A. Simon and Michael H. Wallis

South Texas College of Law captured first place this weekend in the 11th 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 on March 30-31 featured 33 teams from law schools across the country arguing an unusually timely subject — the constitutionality of a “charitable choice”-type program in which the government partners with a religious organization to deliver social services.

“This year’s competition was inspired by today’s headlines and clearly foreshadows future litigation,” said First Amendment Center Executive Director Ken Paulson.

More than 70 law students argued Glenfield District Board of Education v. Baum. In this fictional problem, the U.S. Department of Education, through the Glenfield District Board of Education, funded an after-school tutoring and guidance program run by the Education Committee of the Glenfield Central Baptist Church.

Beverly Baum, the mother of student Steven Baum, contended that the high school program violated the establishment clause of the First Amendment, which ensures separation between church and state.

Georgia runners-up Renee Y. Little and Gardiner Thompson

During the competition, students engaged in the art of appellate advocacy by facing rapid-fire questions on First Amendment law from panels of actual attorneys, law professors and judges. The process required the students to combine their mastery of First Amendment law with quick, creative thinking.

‘Final four’ and a judge’s revelation about landmark U.S. Supreme Court decision
The competition featured an impressive “final four” of South Texas College of Law, University of Georgia School of Law, University of San Diego School of Law and Florida State University College of Law.

In the pairings, Shalimar Simon and Michael Wallis from South Texas represented Glenfield and faced Jennifer Littleton and Braden Boucek from Florida State, who represented Baum. In the second semifinal, Kelly Menck and Victor Ou from San Diego represented Glenfield and faced Renee Little and Gardiner Thompson from Georgia, who represented Baum.

The teams faced questioning from a panel of four federal judges, including:

  • Judge Sidney Fitzwater, U.S. District Court for the Northern District of Texas.
  • Judge William J. Haynes Jr., U.S. District Court for the Middle District of Tennessee.
  • 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.

All four teams fared well under tough questioning from the judges. After the first semifinal round, the competition featured one of its highlights when Oberdorfer explained why this moot court problem was “particularly interesting” to him.

Left, Judge Sidney A. Fitzwater, Judge William J. Haynes Jr., Senior Judge Louis F. Oberdorfer and Judge Aleta A. Trauger.

“I served as Justice [Hugo] Black’s law clerk when he wrote the Everson case,” he said. “And I don’t think the Everson case was argued as well as this.”

Oberdorfer was referring to the Supreme Court’s landmark 1947 establishment clause decision of Everson v. Board of Education. In that case, the court upheld, by a 5-4 vote, a New Jersey program that reimbursed the parents of parochial school students for bus transportation costs.

In his majority opinion, Justice Black explained the meaning of the establishment clause:

The ‘establishment of religion’ clause of the First Amendment means at least this: neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. … In the words of Jefferson, the clause against establishment of religion by law was intending to erect ‘a wall of separation between church and state.’

Another highlight of the semifinal rounds came from the performance of Georgia’s Renee Little. She cited exact pages from establishment clause cases such as Lemon v. Kurtzmann and Agostini v. Felton.

After her round, Oberdorfer recalled that a judicial colleague had raved to him about the recall powers of attorney David Boies in the Microsoft case. “Ms. Little seems to have been endowed with similar recall powers,” he said.

When interviewed about this comparison, Little said she was “flattered.” “I would enjoy the comparison all the more if I made the money of Mr. Boies,” she added.

Final-round arguments
In the final round the teams from Georgia and South Texas had to switch sides from their semifinal positions. The team from Georgia argued on behalf of petitioner Glenfield District Board of Education and the team from South Texas argued on behalf of respondent Beverly Baum.

The teams faced a “Supreme Court” of five appellate judges, including:

  • Judge Richard S. Arnold, 8th U.S. Circuit Court of Appeals.
  • Associate Justice Aldolpho A. Birch Jr., Tennessee Supreme Court.
  • Judge Todd J. Campbell, U.S. District Court for the Middle District of Tennessee.
  • Judge Martha Craig Daughtrey, 6th U.S. Circuit Court of Appeals.
  • Judge Gilbert S. Merritt, 6th U.S. Circuit Court of Appeals.

Little spoke first on behalf of petitioners. She contended that the after-school tutoring and guidance program contained “no religious indoctrination.” She added that “counseling is not an inherently religious activity.”

She again displayed remarkable recall powers, quoting exact pages from Supreme Court opinions.

Left, Judge Richard S. Arnold, Associate Justice Adolpho A. Birch Jr., Judge Martha Craig Daughtrey, Judge Todd J. Campbell, and Judge Gilbert S. Merritt.

Her co-counsel Gardiner Thompson followed by arguing that the program did not violate the court’s coercion and endorsement tests. The coercion test, developed in the court’s 1992 decision in Lee v. Weisman, asks whether an individual was coerced into joining a particular religious practice. The endorsement test, developed by Justice Sandra Day O’Connor in the 1984 decision Lynch v. Donnelly, asks whether a reasonable observer would view a program as a government endorsement of religion.

Thompson noted that “the phrase ‘Love Thy Neighbor’ transcends the Bible.” He emphasized that participation in the Glenfield program was “voluntary,” adding that “there was no coercion on students to participate in religious exercises.”

Simon led off for the respondents. She contended that the court should apply the coercion test because the case involved “children in a captive audience.” She argued that the record in the case contained evidence of indoctrination, including the use of the Bible, the lapel pin saying “Love Thy Neighbor” and the title of the classes by the same name.

These factors, she argued, showed that the school district “preferred religion over nonreligion and preferred Christianity above all else.” This setting led to a “conflict of conscience” for the Baums, she said.

Simon concluded with a passionate reminder of the purpose behind the establishment clause:

Your honors, the establishment clause was not created for the majority, it was created for the minority. It was created to protect that one child who objects. And in this case, that child is Steven Baum, and he is seeking this court’s protection.

Her co-counsel, Michael Wallis, faced tough questioning from the outset from Judges Arnold and Merritt, who questioned him about the different tests the Supreme Court uses in establishment clause cases.

Arnold asked whether “these tests can coexist,” while Merritt asked whether the court applies a different test “depending on how we feel that day.” Wallis quickly responded: “It seems the opinions read that way, your honor,” drawing chuckles from the gallery.

Wallis contended that the program did not satisfy the first prong of the Lemon test, called the “secular purpose” prong. He pointed out that the “express secular purpose must be sincere and not a sham.” In its 1971 decision Lemon v. Kurtzmann, the court articulated a multi-part test for establishment clause cases. The other prongs are:

  • Whether the governmental program has the primary effect of advancing or inhibiting religion.
  • Whether the program excessively entangles government with religion.

Wallis argued that in this case “the government has essentially created a religious school on the grounds of its public schools.” Wallis also invoked the meaning of the First Amendment’s establishment clause:

The First Amendment in this case would protect my client in his right to find religion on his own and not have it in his school on a daily basis in a program that he vitally needs but does not want to participate in because of the Christian spin in the classes.

‘Supreme Court’s’ verdict
Daughtrey, who served as “chief justice,” announced South Texas as the winner in what she called an “excruciatingly close” decision. “It was too bad that we couldn’t just declare it a draw,” she said.

All of the final-round judges praised the quality of the students’ oral-advocacy skills. Arnold thanked the participants for “an afternoon of amusement” and for the “professional conversation.” He then specifically praised each advocate individually.

Birch noted that the students displayed “unusual acumen” when facing tough questions. Campbell agreed that the advocacy was “outstanding” and urged the future attorneys to “take oral argument as an opportunity to educate the judge.” He added that in real life he would have had to recuse himself from the case because he had represented Richard C. Riley, former secretary of education for the United States and a named defendant in the moot court case.

Merritt also praised the advocates. He spoke about the purpose of the competition as requiring the students “to think in a more concrete way about the First Amendment.” He also spoke at length on the importance of oral advocacy to the “Anglo-American legal tradition.”

Daughtrey concluded the competition by thanking the finalists for their fine work and telling them to “keep their skills well-honed.” “We appellate judges love to hear good oral arguments,” she said.

In later interviews, Campbell and Birch added that the competition really helps them keep abreast of First Amendment law. “This competition encourages a keener awareness of current First Amendment issues and gives me a fresh look at developing First Amendment issues,” Birch said.

Campbell added that the competition was vital to increasing his knowledge of the First Amendment. “You have to remember that I, as a federal district court judge, am more of a generalist. This competition really assists me.”

John Seigenthaler, founder of the First Amendment Center, said this “11th annual competition was the tightest and most competitive in the decade that I’ve been attending. For once in my life, I was delighted that I was not a judge who had to make the ruling in this moot court final round.”

Reaction from the winners
Simon and Wallis, who are engaged, said they were “ecstatic” with the verdict. Wallis said “the experience was intimidating but exhilarating. This is why you want to practice law.”

“It was such an honor to argue in front of a panel of appellate judges,” Simon said. “It was a real thrill.”

“The best thing about this competition was the quality of the judging from the first to the final rounds,” Wallis said. “The competition was really challenging because it forced you to argue both sides and to think about the issues. The competition showed us that there is a delicate balance between what is permissible and impermissible under the establishment clause.”

When asked whether their engagement helped them in preparing for the rigors of the competition, Wallis quipped: “It depends on whom you ask.”

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