Social Education 66(1), pp.53-59
©2002 National Council for the Social Studies

Which Cases Should We Teach?

Diana Hess and Anand Marri

In 1792, the new Supreme Court of the United States decided its first case. Since then, the Court has decided thousands of cases. This number presents a selection problem for teachers interested in including Supreme Court cases in their curriculum. Which cases to teach?

People often claim that students should understand the process that the Court uses to make decisions; and because all cases teach that process, the specific topic or decision of a case is insignificant. This argument is problematic, though, because different cases build different understandings of the Constitution, the Supreme Court, and significant historical and contemporary issues of the United States.

As is the case with all content selection decisions in the social studies curriculum, case selection is not a neutral enterprise. Not only will case selection influence the content that students learn, it will also shape how they view the Supreme Court. For example, if a teacher selects for study only those Supreme Court cases that are widely viewed as correctly decided, students will form an impression of the Court that is unrealistically (and, one could argue, dangerously) positive. The reverse impression could develop if students only studied those cases that are now considered legal and political nightmares.

What criteria should teachers use to determine which cases their students should learn? We address this question first by explaining various case selection criteria often used by social studies teachers and analyzing what the state standards say about which Supreme Court cases. Then we explain the criterion that we advocate: selecting cases because they provide students experience in deliberating current controversies.

If the content of cases matters, then the criteria that teachers use to determine which to include in the curriculum is also important. Before establishing such criteria, we must define what we mean by including a case in the curriculum. We recognize that students can easily be exposed to many cases by reading about them, viewing survey films that deal with the Supreme Court, or listening to teachers lecture about cases. Here we want to distinguish between learning what a case and decision are about on the one hand, and building in-depth knowledge and understanding of a case on the other. We advocate the latter—have students learn a small number of cases well rather than have them gain a cursory knowledge of many.

A number of criteria can help teachers select Supreme Court cases for the curriculum. One criterion is to select cases that help students understand the Supreme Court’s role in significant historical events and movements in U.S. history. Using this criterion, Dred Scott v. Sanford1 would be a particularly appropriate case. Another way to select cases is whether the topical focus of a case is especially interesting to young people, such as Tinker v. School District of Des Moines, the famous case about students’ free speech rights in public schools. By selecting such cases, some teachers argue, students can learn how the Court’s decisions make an impact on their lives. A third selection criterion is to choose cases that explain how the Court fits into the U.S. system of government. With this goal in mind, teachers may focus on Marbury v. Madison, the case that firmly established the Court’s power of judicial review. In an interesting book on what young people should learn about the Constitution, law professor Tony Massaro advocates selecting cases that explicate core conflicts (such as the tension between assimilation and dissent) in historical contexts.2 Other criteria for selecting cases include looking at the general difficulty level of a case, the existence of high-quality curricular resources,3 or the case’s importance in state social studies standards.

 

Supreme Court Cases Prominent in Standards

To assist teachers and curriculum developers to understand how Supreme Court cases are treated in state social studies standards, we analyzed the state social studies standards from the forty-eight states with official standards.4 We sought to determine which cases were considered important for students to learn by those people who participated in creating each state’s “official knowledge.”5 We recognize that state standards are an imperfect mechanism for determining what is taught because many teachers pay little or no attention to them when crafting curriculum. It is clear, however, that standards do have some influence on the content of curriculum, especially in those states where standards are enforced through a compulsory testing system.6 Standards also influence the content of textbooks.

Of the forty-eight states with official standards, twenty specifically mention particular Supreme Court cases in their middle or high school social studies, history, government, or political science standards. Most of these states mention only two or three cases, whereas a few others specify many; California includes eleven whereas Indiana has an astonishing thirty-nine. In addition to mentioning specific cases, some state standards include statements about the Constitution, or the philosophy of the Courts that do not cite cases. We are not suggesting that the sum total of standards about the Supreme Court can be found in specific cases. When a specific case is mentioned, however, it gains curricular prominence, and we think it will more likely be taught.

Some cases are mentioned in many standards documents. Table 1 shows the thirteen cases mentioned in three or more state standards documents.7 Notice that four of the thirteen cases deal explicitly with the Constitution and race (Brown v. Board of Education, Plessy v. Ferguson, Dred Scott v. Sanford, and Bakke v. University of California), and four focus on structural issues about government power (Marbury v. Madison, McCulloch v. Maryland, Gibbons v. Ogden, and U.S. v. Nixon). The remaining five cases are either Bill of Rights or Fourteenth Amendment cases (Miranda v. Arizona, Tinker v. Des Moines School District, Gideon v. Wainwright, Roe v. Wade, and Schenck v. U.S.).

We recognized that the standards of the most populous states will have a greater influence on the content of textbooks and supplemental curriculum materials than states with small populations. Consequently, we analyzed the standards of the states with the largest numbers of students who graduated from high school in the 1999-2000 school year. Table 2 shows that the three most populous states (California, Texas, and New York) have an above-average number of cases listed in their standards, which is important because approximately 25 percent of the U.S. student population graduates from high schools in those three states.8

 

Patterns in the Standards

Given the range of cases listed in the twenty state standards, no discernible patterns may appear at first glance. Further analysis, however, shows important similarities. First, Brown v. Board of Education is the most frequently mentioned case, referred to specifically in fifteen of the twenty states that list cases in their standards. Legal scholar Bernard Schwartz calls Brown “the watershed constitutional case of the twentieth century” and writes that Supreme Court Justice Reed told one of his law clerks, “if it was not the most important decision in the history of the Court, it was very close.”9 Its importance, then, is clearly a factor in explaining why Brown leads the standards list. Another factor is the near unanimity among legal scholars that the case was decided correctly. Moreover, Brown revolves around the moral imperative of equality and thus provides an opportunity to help young people understand the importance of righting wrongs. In this way, the Brown case is iconic (i.e., “an object of uncritical devotion”10), which may explain why some teachers do not teach it as a historic or contemporary controversy but as a question for which there was one clearly right answer—which the Court recognized.11

The prominence of Brown becomes even easier to interpret in light of two other race cases included in many state standards. Both Plessy v. Ferguson (included in eleven states’ standards) and Dred Scott v. Sanford (included in eight states’ standards) are notable for their infamy. Schwartz lists Dred Scott first and Plessy second on his list of the “ten worst Supreme Court decisions.” The Dred Scott decision, Schwartz writes, “cast a dark shadow over the highest bench itself. . . . . and proved a catalyst that helped precipitate the civil conflict that soon followed.” The Plessy v. Ferguson decision, according to Schwartz, “gave lie to the American ideal that ‘all men are created equal.’”

This trio of cases (Brown, Dred Scott, and Plessy) is particularly helpful for teachers (and standards writers) who are seeking content that sends young people the message that injustices can be corrected and that democracies can make progressive changes.12 Unfortunately, this trio also has the potential to mislead students in two significant ways. If taught as a group, these cases may give the impression that the Court is more powerful than it really is in shaping public opinion and righting social wrongs. Brown has not solved the vast inequalities in education between blacks and whites in the United States. Second, when using historic cases, students must understand the fallibility of the Court. They do not always get it “right.” As historian Eric Foner notes,

The history of freedom in this country is not, as is often thought, the logical working out of ideas immanent in our founding documents or a straight-line trajectory of continual progress. It is a story of countless disagreements and battles in which victories sometimes prove temporary and retrogression often follows progress.13

Plessy v. Ferguson and Brown v. Board of Education are often taught as just such a straight-line trajectory of progress. Teachers need to present cases that also illustrate the rollback of rights, or students will get a misleading impression about the Court’s historical role.

Although Dred Scott and Plessy are not taught as cases that the Court decided correctly, they tend to be followed by Brown, which reinforces the message that the Court eventually does correct its errors. Other cases that have prominence in the state standards are similar in that they, too, are considered both “landmark” and rightly decided. In particular, of Marbury v. Madison (included in fourteen states’ standards), McCulloch v. Maryland (in eleven states’ standards), and Miranda v. Arizona (in eight states’ standards), two join Brown on Schwartz’s list of “ten greatest Supreme Court decisions”–with Marbury in first place, Brown in second, and McCulloch in third. In short, the cases that are deemed most important for young people to learn appear to be those that the Supreme Court “got right”—which is a proxy for noncontroversial. Even Miranda, which was extremely controversial when it was decided, has become so accepted that in the 1999-2000 term, conservative Chief Justice Rehnquist wrote the Court’s 7-2 opinion in Dickerson v. United States, a case in which the Court essentially reaffirmed the “rightness” and permanence of Miranda. For the Court’s majority, Rehnquist wrote: “Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture.”

The cases about topics that continue to be the most controversial are given scant attention in the state standards. Consider that only four states list Roe v. Wade and only three include Bakke v. California. Among the plethora of controversial issues in the United States, abortion and affirmative action are important and divisive. In short, the standards documents are heavy on idealization and light on contemporary controversy; that is, as a general rule, the more controversial a case remains, the less likely it is to appear in the standards, which holds even if the case was decided many years ago (Roe v. Wade is almost thirty years old.)

The absence of “live” (i.e., current) controversy is most apparent when analyzing not only what appears in the standards, but also what is left out or is given scant attention. Four cases, whose absence strikes us as particularly important, focus on aspects of conceptualizing diversity other than race, such as religion, gender, sexual orientation, and immigration status. Other absent cases focus on the important and perennial tensions between equality and capitalism (e.g., regulating the market or legislation that explicitly redistributes wealth). Additionally, few standards include cases about students’ rights in schools or cases that focus on two of the most important rights in the First Amendment: freedoms of speech and the press.

What is most surprising to us is the contradiction between the types of cases given prominence in the standards documents and the curricular recommendations of educators with specific expertise in law-related education. The law-related education community recommends the inclusion of controversial Supreme Court cases in the school curriculum because they are useful sources for young people to learn about the complexities of historic and contemporary controversy. What is considered “official knowledge” is unfortunately devoid of many controversies that young people need to know in order to function in a multicultural democracy. Such democracies, by definition, will be replete with controversies that must be deliberated on as part of the “ongoing, creative struggle to work out a way of living together fairly, freely, and equally.”14

Focus on “Live” Controversies

As an alternative to the prominent cases in the standards documents, we recommend the use of cases that embed “live” controversies. Our critique of the standards is that they place too much emphasis on historic cases and too little on those of more contemporary relevance. This is not to suggest that students should be deprived of historically significant cases. But students need in-depth analyses of cases, which means quantity may have to be sacrificed for quality. Striving for curricular balance between those cases that help students understand settled constitutional conflicts and those that focus on “live” conflicts is important.

The primary rationale for selecting “live” conflict cases is to involve students in democratic deliberation about important controversial public issues. Because the U.S. Supreme Court is the highest court in the land, people often believe that its decisions mark the end of democratic deliberation about a specific issue. Most Supreme Court decisions, though, are not final. Legislatures react to them with new legislation, and federal or state constitutions are occasionally amended because of them. For example, although a number of Supreme Court cases have related to affirmative action (and another one is on the Court’s docket for this term), the issue dwells in the public policy arena. Consider, for example, that in the recent past, voters in California and Washington have been faced with ballot initiatives on affirmative action. In all probability, students will need to deliberate affirmative action at some point in their adult lives. In-depth study of a major affirmative action case (such as Bakke) would provide students with deliberation experience.

Other curricular materials can provide students with opportunities to deliberate contemporary public policy issues as well, so why are Supreme Court cases essential for achieving that goal? The inherent balance in cases make them one (but by no means the only) important source for public policy deliberation. Consider that briefs are filed on both sides of a case and that most major cases spark a number of amicus (“friends of the court”) briefs from organizations with specific expertise and conflicting views on the issue. Moreover, in many controversial cases, the justices disagree about the proper decision. Thus, their conflicting opinions can be powerful representations of competing points of view.

Finally, when the Supreme Court takes a case on a controversial topic, it is often easier for teachers to justify devoting curricular attention to that topic—especially in communities where controversies are seen as inappropriate for the curriculum. For example, in 1986 the Supreme Court handed down a decision in Bowers v. Hardwick, which involved whether the Constitution confers a fundamental right on homosexuals to engage in consensual sodomy, considered illegal in many states. During that summer, a high school teacher included this case in the Constitution unit of a social studies summer school class. An assistant principal just happened to walk by the classroom when the students were deliberating whether the Court had made the correct decision in the case—a deliberation that included the word sodomy. This administrator was not pleased but found it difficult to object to the inclusion of a controversial issue that was “mainstream” enough to reach the Supreme Court. In a similar fashion, we know that school prayer cases have allowed teachers in communities where the majority favors state-sponsored school prayer to bring that issue into the classroom. This also accounts for why, in some communities, Roe v. Wade is the only politically viable way of including the topic of abortion in the school curriculum.

Supreme Court cases, then, provide teachers with curricular cover to include controversies in their courses that they believe will help students develop some of the democratic skills most difficult to attain, especially the ability to talk with others in a public forum about divisive and difficult issues. As political theorist Amy Gutmann writes, “A primary aim of publicly mandated schooling is to cultivate the skills and virtues of deliberation….by cultivating these deliberative skills and virtues, a democratic society helps secure both the basic opportunity of individuals and its collective capacity to pursue justice.”15

We do not suggest that teachers include only Supreme Court cases that focus on “live” controversies in the curriculum. Such cases, however, should receive a privileged curricular position because they can simultaneously build an understanding of important constitutional principles (such as the meaning of equal protection and liberty—and how to mediate tensions between these core principles) and provide a forum for deliberating “live” controversies. We cannot imagine, of course, any justification for dismissing the Brown case from the curriculum. But we worry that the state standards overly represent cases of historic importance. Many cases can help students engage in the difficult task of building understanding of constitutional principles and what should be done when principles conflict. The added value of focusing on cases about contemporary controversies is the deliberative experience on the very issues that continue to be ripe for public policy making. By doing so, we can leverage the power of learning Supreme Court cases toward the goal of preparing young people to make informed decisions about issues facing the United States.

 

Cases Cited in Article

A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935)

Adarand Constructors, Inc. v. Mineta, No. 00-730 (2001)

Bethel Sch. Dist. v. Fraser, 478 U.S. 675 (1986)

Bowers v. Hardwick, 478 U.S. 186 (1986)

Brown v. Board of Education of Topeka, 347 U.S. 483 (1954)

Dickerson v. United States, 530 U.S. 428 (2000)

Dred Scott v. Sanford, 60 U.S. 393 (1857)

Engel v. Vitale, 370 U.S. 421 (1962)

Gibbons v. Ogden, 22 U.S. 1 (1824)

Gideon v. Wainwright, 372 U.S. 335 (1963)

Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988)

Humphrey’s Executor v. United States, 295 U.S. 602 (1935)

Korematsu v. United States, 323 U.S. 214 (1944)

Lemon v. Kurtzman, 411 U.S. 192 (1973)

Louisville Bank v. Radford, 295 U.S. 555 (1935)

Marbury v. Madison, 5 U.S. 137 (1803)

McCulloch v. Maryland, 17 U.S. 316 (1819)

Minersville Sch. Dist. v. Board of Educ., 310 U.S. 586 (1940)

Miranda v. Arizona, 384 U.S. 436 (1966)

New York Times Co. v. Sullivan, 376 U.S. 254 (1964)

Plessy v. Ferguson, 163 U.S. 537 (1896)

Regents of Univ. of California v. Bakke, 438 U.S. 265 (1978)

Reynolds v. Sims, 377 U.S. 533 (1964)

Roe v. Wade, 410 U.S. 113 (1973)

Schenck v. United States, 249 U.S. 47 (1919)

School Dist. of Abington Township v. Schempp, 374 U.S. 203 (1963)

Tinker v. Des Moines Indep. Commun. Sch. Dist., 393 U.S. 503 (1969)

United States v. Nixon, 418 U.S. 683 (1974)

United States v. Virginia (VMI), No. 94-1941 (1996)

Wisconsin v. Yoder, 406 U.S. 205 (1972)

Zorach v. Clauson, 343 U.S. 306 (1952)

 

Notes

1. The title of this case in the official records of the Supreme Court is Sandford because the Court made a mistake–the correct spelling is actually Sanford. See “The Dred Scott Case,” Washington University Libraries, Washington University in St. Louis, www.library.wustl.edu/vlib/dredscott/

2. Tony Massaro, Constitutional Literacy: A Core Curriculum for a Multicultural Nation (Durham, NC: Duke University Press, 1993).

3. An explanation of ten case selection criteria can be found at streetlaw.org/sciteach.html# Criteria.

4. The research in this article was made possible in part by the Supreme Court Historical Society. The data presented, the statements made, and the views expressed are solely the authors’ responsibility.

5. Michael Apple defined official knowledge as high-status knowledge that is produced or endorsed by the dominant culture. Michael Apple and James Beane, eds., Democratic School (Alexandria, VA: Association for Supervision and Curriculum Development, 1995).

6. E. Wayne Ross, ed., The Social Studies Curriculum: Purposes, Problems, and Possibilities (Revised ed.) (Albany, NY: State University of New York Press, 2001).

7. For a copy of the research data that shows which cases are listed by state and the District of Columbia, contact dhess@education.wisc.edu.

8. Only twenty states specifically list any U.S. Supreme Court cases in their standards. The average number of cases listed is six.

9. Bernard Schwartz, A Book of Legal Lists: The Best and Worst in American Law (New York, NY: Oxford University Press, 1997), 50.

10. Merriam Webster’s Collegiate Dictionary (1993).

11. Last summer, while teaching two groups of thirty middle and high school social studies teachers about the Supreme Court, we learned that well over half of those teachers who taught Brown (and almost all of them did) presented it as a case that, although controversial when decided, should be viewed now as noncontroversial.

12. One legal scholar, Jamie Raskin, writes that the Court’s decision in Bush v. Gore was even worse than Dred Scott because in Dred Scott, the Constitution (not the Court) was racist. In other words, the Court correctly interpreted the Constitution in Dred Scott, but the document itself was flawed. Conversely, in Bush v. Gore, the Court was the problem, not the Constitution. See Jamie Raskin, “Bandits in Black Robes,” Washington Monthly (March 2001): 25.

13. Eric Foner, “The Most Patriotic Act,” The Nation 273, no. 10 (October 8, 2001): 13.

14. Walter Parker, “Toward Enlightened Political Engagement,” in Critical Issues in Social Studies Research, ed. W.B. Stanley (Greenwich, Conn.: Information Age Press, 2001), 109.

15. A. Gutman, Democratic Education (Princeton, NJ: Princeton University Press, 1999), xiii.

 

Diana Hess is an assistant professor of curriculum and instruction at the University of Wisconsin(UW)-Madison. Her research is about the role of discussion and controversial political and legal issues in democracy education. Anand Marri is a Ph.D. candidate in curriculum and instruction at UW-Madison. His research focuses on social studies education and multicultural education.

 

 

Table 1

Cases Most Frequently Mentioned in States’ Social Studies Standards

 

Case No. of States States

 

Brown v. Board of Education (1954) 15 Alabama, Arizona, California, Colorado, Kansas, Massachusetts, Maryland, Mississippi, Nevada, New York, Pennsylvania, Tennessee, Texas, Utah, Virginia

 

Marbury v. Madison (1803) 14 Alabama, California, Colorado, Indiana, Massachusetts, Maryland, Nebraska, Nevada, New York, Oklahoma, Pennsylvania, Texas, Utah, Virginia

 

McCulloch v. Maryland (1819) 11 Alabama, California, Indiana, Massachusetts, Maryland, Nebraska, New York, Oklahoma, Texas, Utah, Virginia

 

Plessy v. Ferguson (1896) 11 Alabama, California, Indiana, Kansas, Massachusetts, Maryland, Mississippi, Nevada, New York, Pennsylvania, Utah

 

Dred Scott v. Sanford (1857) 8 Arizona, California, Indiana, Kansas, Massachusetts, New York, Texas, Utah

 

Miranda v. Arizona (1966) 8 California, Colorado, Maryland, Nevada, New York, Tennessee, Texas, Utah

 

Gideon v. Wainwright (1963) 4 Colorado, Maryland, Nevada, Utah

 

Roe v. Wade (1973) 4 Indiana, Massachusetts, New York, Tennessee

 

Tinker v. Des Moines School District (1969) 4 Colorado, Maryland, New Jersey, Nevada

 

Bakke v. Board of the Regents of California (1978) 3 California, Colorado, Texas

 

Gibbons v. Ogden (1824) 3 Alabama, Massachusetts, Texas

 

Schenck v. United States (1919) 3 Indiana, New Jersey, Texas

 

United States v. Nixon (1974) 3 California, Colorado, Indiana

 

Table 2

U.S. Supreme Court Cases in the State Social Studies Standards of the

Ten Most Populous States

 

State (publication date) Cases

 

California (1998) Dred Scott v. Sanford

Brown v. Board of Education

Korematsu v. U.S.

Plessy v. Ferguson

Bakke v. California

U.S. v. Virginia (VMI)

Marbury v. Madison

McCulloch v. Maryland

U.S. v. Nixon

Miranda v. Arizona

Adarand Constructors, Inc. v. Mineta

 

Texas (1998) Dred Scott v. Sanford

Marbury v. Madison

Gibbons v. Ogden

Brown v. Board of Education

McCulloch v. Maryland

Miranda v. Arizona

Bakke v. California

Reynolds v. Sims

Engel v. Vitale

Schenck v. U.S.

 

New York (1996) Marbury v. Madison

Plessy v. Ferguson

Brown v. Board of Education

McCulloch v. Maryland

Miranda v. Arizona

Dred Scott v. Sanford

Roe v. Wade

 

Pennsylvania (2001) Marbury v. Madison

Plessy v. Ferguson

Brown v. Board of Education

Minersville School District v. Board of Education

Lemon v. Kurtzman

 

Illinois (2001) None

Ohio (1999)

Florida (1996)

Michigan (1996)

New Jersey (1996) Bethel School District No. 403 v. Fraser

Hazelwood School District v. Kuhlmeier

School District of Abington Township v. Schempp

Tinker v. Des Moines School District

Wisconsin v. Yoder

Zorach v. Clauson

Louisville Bank v. Radford

Humphrey’s Executor v. U.S.

Schechter Poultry Corporation v. U.S.

New York Times v. Sullivan

Schenck v. U.S.

 

Virginia (2001 & 1995) Marbury v. Madison

Brown v. Board of Education

McCulloch v. Maryland