Professor Robert Sedler
"As a Wayne Law professor, I bring into the classroom cases that I have litigated and cases in which I have consulted."
Why did you specialize in constitutional law? I was in college and law school during the ‘50's, graduating law school in 1959. During that time there were important issues about civil rights, freedom of speech, and other areas that were a part of constitutional law. Constitutional law was my favorite course in law school, and the moot court problem when I was on the national moot court team was a constitutional law problem. I also did law review notes on constitutional law subjects. I had my first full-time teaching appointment at Saint Louis University in 1961, but I couldn't get the course in constitutional law, because more senior people were teaching it. I did a successful school desegregation case in Charleston, Missouri for the Missouri NAACP in 1962-1963.
I was teaching law in Ethiopia from 1963-1966. When I returned to the United States, I accepted an appointment at the University of Kentucky, and taught there from 1966 to 1975. I still couldn't get the basic course in constitutional law, but I established two new courses for myself in civil rights and civil liberties. The civil rights course dealt with constitutional and statutory protections against racial and gender discrimination, and the civil liberties course dealt with individual liberties, such as reproductive freedom. During those years, I did a lot of civil rights and civil liberties litigation, mostly as a volunteer lawyer for the Kentucky ACLU. I litigated the "Kentucky version of Roe v. Wade, race and sex discrimination cases, including successful school desegregation suits in Louisville and Lexington, Kentucky, free speech cases, emphasizing anti-war protests during the Vietnam War, and also defended draft resisters. Two of my cases, one involving a draft resister, and one involving an attorney who was held in contempt during a racially-charged criminal case, made it to the United States Supreme Court. I was successful in both cases.
After two years of a sabbatical in Italy and visits at Washington University and Cornell University, I came to Wayne Law in the fall of 1977. Ever since that first year, I have taught both Constitutional Law I and Constitutional Law II, and Conflict of Laws, my other area of specialty. I have published extensively in both fields and have made numerous presentations on constitutional law in Canada, the Netherlands and Russia. I continue to make presentations in Russia each year, currently at the Ural State Academy of Law in Ekaterinburg, Russia.
I have also litigated a lot of civil rights and civil liberties cases in Michigan, mostly for the Michigan ACLU. These cases have included challenges to racial discrimination, prayer at high school commencements, displays of nativity scenes on public property, campus speech codes, a ban on physician-assisted suicide, and suspicionless drug testing of welfare recipients. I have pretty much stopped active litigation in the last five years or so.
What courses do you teach at Wayne Law? I teach Constitutional Law I, Constitutional Law II and Conflict of Laws. I enjoy teaching all three courses equally.
Will you tell us something about one of your major cases in Michigan? Doe v. University of Michigan, 721 F.Supp. 852 (E.D.Mich. 1989) was the seminal case presenting a first amendment challenge to a public university's ban on so-called "hate speech." In 1988 the University of Michigan adopted a speech code subjecting students to discipline for "verbal behavior that stigmatizes or victimizes an individual on the basis of race, ethnicity, religion, sex, sexual orientation, creed, national origin, ancestry, age, marital status, handicap or Vietnam-era veteran status, and that . . . creates an intimidating, hostile, or demeaning environment for educational pursuits, employment or participation in university sponsored extra-curricular activities." While the speech code may have had the laudable goal of protecting minority students and other "protected" groups from acts of discrimination, its terms were so broad and sweeping that it violated the first amendment. Like it or not, the first amendment protects "hate speech" and protects ideas and expressions that may be offensive to many persons. In addition to presenting the substantive first amendment question, the case also presented standing and mootness issues. Opposing counsel in the case was my longtime friend, Wayne Law alumnus, and now Chief Judge of the Michigan Court of Appeals, Judge Henry Saad. We briefed and argued all the issues extensively.
On Sept. 7, 1989, United States District Court Judge Avern Cohen held that the speech code on its face violated the first Amendment and enjoined its enforcement. This was the first decision in the United States holding that a university speech code violated the first amendment. It was followed by other courts when faced with this question. The result in this case was supported by the United States Supreme Court decision in R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), which was cited, along with Doe v. University of Michigan by Judge Damon J. Keith of the United States Court of Appeals for the Sixth Circuit in Dambrot v. Central Michigan University, 55 F.3d 1177 (6th Cir. 1995), another case that I litigated, where the court held unconstitutional a similar speech code of Central Michigan University.
Doe v. University of Michigan was the subject of a symposium in the Wayne Law Review in 1991, which included my article about the case, Doe v. University of Michigan and Campus Bans on Racist Speech: The View from Within, 37 Wayne Law Review 1325 (1991), and was the basis for another article, The Unconstitutionality of Campus Bans on "Racist Speech": The View from Without and Within, 53 University of Pittsburgh Law Review 631 (1992). Following that case, I did a number of presentations throughout the country on programs dealing with "hate speech" and campus speech code, including presentations at Harvard's Kennedy School, Smith College. Dickinson Law School, and the University of California-Davis Law School.
How do you share this kind of experience with students in the classroom? I bring in cases that I have litigated and cases in which I have consulted in all three of my courses (I have also consulted and litigated cases in the conflict of laws areas). I believe that my discussion of these cases is helpful to the students in understanding the material they are studying, and especially in relating the cases to the real world context in which the cases have arisen. I try to avoid lapsing into "war stories," but I am sure that some students think that sometimes I do so. On the whole, however, my discussion of the cases that I have litigated is well-received by the class.
What do you see as the future of constitutional law? We live under a constitution and have had a long history of constitutional litigation involving questions of individual rights, questions of federal-state power and even some questions involving separation of powers on the federal level. This trend may be expected to continue. At the same time, I have tried to demonstrate that as a result of a long history of constitutional litigation, much of constitutional law is well-settled, and that most constitutional litigation involves the application of existing constitutional doctrine to new situations and new challenges. For example, the efforts of the Bush Administration to assert Presidential power under Art. II during the so-called "war on terrorism" have been rejected by the Supreme Court when the assertion of Presidential power conflicts with Congressional legislation. So, in Hamdan v. Rumsfeld, 548 U.S. 557 (2006), the Court struck down the military commissions established by the President to try the Guantanamo detainees as not being authorized by any law of Congress. This holding is in the line of growth of constitutional doctrine relating to Congressional and Presidential power, going back to Youngstown Sheet & Tube Co. V. Sawyer, 343 U.S. 579 (1952), where the Supreme Court held that the President's seizure of the nation's steel mills in order to avoid a nationwide strike during the Korean War was unconstitutional, because Congress had enacted a law providing a process for dealing with strikes that could cause a "national emergency." Sometimes, the Court will render a decision resolving an important question that had not yet previously been decided, such as District of Columbia v. Heller, 128 S.Ct. 2783 (2008), where the Court for the first time held that the Second Amendment established an individual right to keep and bear arms and found that a District of Columbia law absolutely prohibiting the possession of a loaded handgun in the home violated the Second Amendment. And in Boumediene v. Bush, 128 S.Ct. 2229 (2008), the Court held that the use of Combat Status Review Tribunals, with only limited judicial review, to determine whether the Guantanamo detainees were unlawful enemy combatants amounted to an unconstitutional suspension of the writ of habeas corpus.
Constitutional law will continue to play a very important role in the American legal system. However, if I am correct in my assessment, most constitutional litigation will involve the application of existing doctrine to new situations and new challenges.
What do you like most about teaching constitutional law at Wayne Law? It is very exciting for me to teach constitutional law at Wayne Law. I find the students to be very interested in and very well informed about public issues, and with some frequency, public issues present constitutional questions. Also, our graduates will not only be lawyers, but they will be policymakers, public officials and judges, and will to some extent be applying what they learned in constitutional law to their policymaking or judicial task.