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Author: Michael Conklin 1
Title:
Constitutionally Vague Class Punishment
Activity overview:
This activity illustrates why punishments that are unconstitutionally vague
are unenforceable in a highly memorable manner.
Ingredients: A face-to-face class and some slight acting ability on behalf of the instructor


Running the activity: Start class by explaining in a very serious tone something along these
lines:

I’m very disappointed to have to do this in a college class but I am implementing
the following new rule. Any student who is disrespectful to the instructor in any
way, whether in-person or through email, will be docked 2% of their final grade
per occurrence. This new policy takes effect immediately. Now, are there any
questions about the implementation of this rule?


Inevitably, one brave student will timidly ask, “But, how do we know what counts as
disrespectful?” To which you can respond, “I feel like you are questioning my authority which is
disrespectful; I’m docking you the 2%!” By this time, the class begins to realize that this was all
a ruse, and you can explain the lesson behind the activity.


Much like it would be unfair for the instructor to punish students for being “disrespectful” when
nobody knows exactly what that means, it would also be unfair for the government to punish
citizens for violating laws that are so vague, there’s no way of knowing exactly what is required.
Such laws are “void for vagueness” and therefore unenforceable.


Examples of unconstitutionally vague laws include:
– A sodomy law criminalizing “abominable and detestable crimes against nature.” 2
– Loitering statute that forbade “remaining in any one place with no apparent purpose.” 3
– Parole condition banning “all forms of pornography, including legal adult pornography.” 4
– FCC banning “obscene,” “vulgar,” “profane,” and “indecent” words without defining
which words qualify. 5
– Law requiring an abortion clinic to dispose of remains in a “humane” manner. 6

1Powell Endowed Professor of Business Law, Angelo State University.
2 Franklin v. State, 257 So.2d 21 (1971).
3 City of Chicago v. Morales, 527 U.S. 41 (1999).
4 U.S. v. Ray Donald Loy, 237 F.3d 251 (2001).
5 FCC v. Fox Television Stations, Inc., 132 S.Ct. 2307 (2012).
6 City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983).

You can ask the class what behaviors would qualify as violating these laws and you will get
wildly disparate answers. This is similar to how there would be different beliefs as to what is
disrespectful to an instructor (Showing up late to class? Asking a question that is covered in the
syllabus? Looking at your phone during class? Turning in a poorly written essay?).


Furthermore, vague laws invite discriminatory enforcement. Using the classroom disrespect
policy as an example, the experiences of the instructor (informed by his or her race, gender,
political views, religion, and socioeconomic status) create a highly subjective notion as to what is
disrespectful. Therefore, behavior from students whose backgrounds are more divergent from the
instructor’s are more likely to be misinterpreted as disrespectful. And even worse, an instructor
could use the vague nature of the rule to selectively punish some students and not others.


Substitutions: This exercise could be utilized in a synchronous online class. However, it is not
recommended for an asynchronous online class.


Suggestions: At the beginning, really sell the class on the idea that something has upset you so
much that you are imposing this new rule. The more the class buys in to this premise, the more
lasting of an impression the lesson will have. If done correctly, it is exhilarating to see the class
go from nervous silence to uproarious laughter and relief. This emotional rollercoaster really
primes them to be engaged in the learning outcomes of the activity.

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