Advanced Curriculum Spotlight: Constitutional Law
By Dylan Howlett
5-minute read
After a successful pilot of eight courses in 2023–2024, Durham Academy Upper School’s new Advanced (ADV) curriculum — an internally designed, academically rigorous set of courses that emphasize depth over breadth, global relevance and independent problem-solving — debuted with 52 course offerings for the 2024–2025 school year. And in 2025–2026, 60 ADV courses are on offer at the Upper School.
Dozens of Upper School students and teachers at Durham Academy have already experienced — and raved — about the manifest advantages of ADV courses over Advanced Placement (AP) courses, which DA has fully sunsetted. Long-lasting learning. Real-life situations. Enduring skills that span academic journeys and professional careers. It’s exactly what we captured in October as visitors to Dr. Brian Fennessy’s ADV History of Durham course.
Our second ADV spotlight brings us to ADV History: Constitutional Law, which — on an early Wednesday morning in May – far more closely resembled a courtroom than an Upper School classroom. That is, of course, by design. All rise.
ADV History: Constitutional Law
Josh Klein | 8:20 a.m.
The stew of anticipation, and excitement, and uncertainty in room 4129 of the STEM & Humanities Center is as unmistakable as it is palpable. It is both the essence — and, for those students with a slightly more terrified view of these imminent proceedings, the price — of delivering legal arguments in the American justice system. A group of 14 Upper School students find their seat at the back of the room. They are here today only to take notes, not to judge. That task is left to the four robed justices, who sit in a row of student desks at the front of the room and stare intently at a lectern no more than five paces away. “I know there’s a nervous excitement, and that’s perfectly normal,” says Josh Klein, a former criminal prosecutor and attorney, and the instructor for ADV History: Constitutional Law. “You ride that.”
The students-turned-litigators will soon confront the second wave of their culminating project. Two days before, they completed the project’s first part when they submitted — in teams — a legal brief that supported their assigned position for one of three different legal scenarios. Together they considered their case’s impact on civil liberties or civil rights, and the relevant legal precedent, and applicable judicial philosophy as part of their well-reasoned argument. They employed one of two methods of legal writing in their thorough analysis: either “Issue, Rule, Application, Conclusion,” known as IRAC, or “Conclusion, Rule, Analysis/Application, Conclusion,” known as CRAC. That was, for anyone with a strong aversion to public speaking, the easy part.
The project’s second component — which has summoned the guest justices here today — is a veritable baptism in the rigor and authenticity to which all Advanced coursework aspires. Each legal team will deliver an oral argument to the empaneled judges. They are not merely reading a prepared statement. The judges will, as is their professional wont and as Klein instructs them, interrupt the student litigators without warning over the course of each student’s 10-minute argument.
They’ll do so with confidence. Karen Rabenau, former DA Board of Trustees chair and a parent of DA alumni, has been a litigator for more than 30 years. Carl Fox is a retired North Carolina superior court judge who also once served as the district attorney for Chatham and Orange counties. Jasmine Barmer has served as a DA Extended Day teacher since 2023 and was, at the time of this class, only days away from receiving her law degree at N.C. Central University. And then there’s Mike Spatola, the longtime DA history teacher whose 11 years as an Advanced Placement U.S. Government and Politics instructor at the Upper School represent his most salient qualification for today’s proceedings. The exercise is part-inquisition, part-extemperaneous jazz — and completely Constitutional Law.
Today’s First Amendment scenario, United States v. Westlake School District, centers around the suspension of high school students who created a social media account using the school’s name and logo to criticize school policy and administration — and distributed black armbands with a modified version of the school mascot wearing a gag to symbolize what they viewed as administrative suppression of student voices. The students in charge of the social media account eventually posted a digitally created image that depicted a massive fist smashing down on a desk labeled “School Administration”; featured recognizable caricatures of specific administrators hiding beneath a desk in fear; and included a caption that encouraged students to attend an upcoming Board meeting, whereupon they would “rise up and smash some sense into them all.” The students believe their suspension abridged their First Amendment rights.
The defense of the school district, however, begins with decorum. Klein will evaluate each student’s oral argument across five domains: knowledge of case and law, response to questions, legal reasoning, oral advocacy skills and, notably, courtroom etiquette. That last domain behooves each litigant to begin their argument with the same, standard salutation: May it please the court. Opening arguments are underway.
Alex Leiderman ’26, arguing on behalf of the school, says the social media posts constituted intent to intimidate the school board by featuring “specific, identifiable victims” in its iconography. The caption beneath the most incendiary post — “We will rise up and smash some sense into them” — satisfies the Brandenburg test, Leiderman says, which refers to the ruling in Brandenburg v. Ohio (1969) that stipulated free speech could be restricted if the speech referred to “imminent lawless action.”
Rabenau interjects. “Must the speaker intend to actually carry out the threat?” she asks. Fox interrupts and begins parsing Leiderman’s precise argument. “How many people are we talking about when you say the threat was ‘widespread’ and there was intent to carry this out?”
The justices are just getting started. “So we should deny the students’ prerogative to express their feelings?” Spatola asks. A smile creeps across Leiderman’s face. There is a difference, he says, between political hyperbole and real threats of violence. He believes the post constitutes an “intent to intimidate,” as defined by Virginia v. Black (2003). “Our Founding Fathers did not contemplate social media,” says Rabenau, jumping back into the fray. “How do we deal with that?” The court, Leiderman says, should utilize a non-originalist approach and treat the Constitution as a “living document.”
The volleying continues. “What role do parents or families play as opposed to the school?” Spatola asks. (Leiderman: It’s the school’s responsibility to take legal action against students when their speech constitutes a real threat.) “Does the mention of ‘next Thursday’ in the post qualify as an imminent threat?” Fox asks.
Klein, serving as a dutiful timekeeper, chimes in from the far side of the room. “That’s time,” he says, marking the passage of 10 minutes that feels, to any neutral observer, at least 10 times as long.
Jaden Read ’25 approaches the lectern next in support of the defense. She starts to emphasize the heart of the argument that she and Leiderman have constructed: that the social media post constituted a true threat and imminent harm. Rabenau leans forward. “We’ve heard a lot about ‘true threat,’ ‘true threat,’ ‘true threat,’” she says. “What actually constitutes a ‘true threat?’” Read thanks her for the question and says a true threat contains identifiable individuals and a clear action plan. Spatola furrows his brow. “What is the action plan here?” he asks. He apologetically holds up two fists in front of him. “If I do this to you,” he says, “is that a real threat?” Read smiles. “Not necessarily.” Barmer steps in. “How do we balance distress for the school with the right of students to political expression?” Read steadies herself. “If you’re threatening others,” she says, “we can place limits on what you do.”
She then faces a barrage of questions from the justices. Rabenau asks if the case satisfies all of the Watts factors, a reference to Watts v. United States (1969) and the distinction it established between true threats and protected political hyperbole. Fox asks if Read is willing to concede that the speech didn’t cause any disruptions to school activity. Rabenau latches onto the idea and asks if the black armbands that students wore in protest “materially disrupted” any school activities.
Read takes a deep breath as the non-litigants observe with rapt attention behind her. The dissemination of a logo with a gagged school mascot spreads worrisome sentiment, Read says. She also contends the school did not fully suppress student speech: Rather, administration simply followed legal precedent in its response.
Klein smiles from the other side of the room. “That’s time,” he says.
As the defense rests, the attorneys representing the students approach the lectern. Grayson Auman ’25 says the posts didn’t represent a material or substantial disruption to school operations, nor does the speech in question satisfy the Watts test. It qualifies, Auman says, as political hyperbole.
Spatola, who visibly relished the opportunity to joust with the defense, musters up equal aplomb for Auman. “If I came onto campus with a toy gun, do you think that constitutes protected speech?” It does not, Auman says. “How about a T-shirt with the face of Osama bin Laden in the middle of a bullseye?” Before Auman has a chance to contemplate the inflammatory hypothetical, Rabenau repeats the same question she lobbed at Read. Do the speakers actually have to intend to carry out the threat, she wonders? “I believe so,” Auman says. But doesn’t the threat on its own, Rabenau asks, disrupt school operations? Barmer further articulates the crux of the question at hand — whether a social media post can constitute a true threat. “To what extent do you feel students should retain protected speech when using school imagery — even if they’re off campus?” Barmer asks. “Where is the line drawn between expression and intent?”
Auman considers the question, then leans on courtroom etiquette: “Can you clarify your question?” Barmer smiles. “How are we clear that, ‘Oh, our feelings are just hurt’ and not ‘We’re going to smash them next Thursday?’” Klein signals time, but not before Auman offers some concluding thoughts. “The freedom of students to express themselves without fear of reprisal,” Auman says, “may be the most important freedom of all.”
Zeke Kalla ’25 walks to the lectern next and argues the students had this fundamental freedom abridged. “The school punished them not because of disruption,” he says, “but because of discomfort.” Like Leiderman before him, Kalla asks the judges to adopt a non-originalist approach and argues the First Amendment must evolve alongside technological advances.
The judges are far more interested in the validity of the threat. “How do you balance political hyperbole with the potential of actually carrying out a threat?” Spatola asks. Fox nods. “Doesn’t ‘smash them’ mean ‘to beat them up?’” he asks, resting his chin on his clasped hands as he stares at Kalla over the top of his glasses.
Kalla pauses. A hush envelops the room.
“Well, your honor,” Kalla says. “If one of my fellow counselors asked me to ‘break a leg,’ I would not take it as them wanting me to actually break a leg or as them wanting to break that leg: I would take that as luck.”
The judges press on. “Doesn’t the act of teachers having to interrupt class to ask students to remove armbands constitute a disruption?” Rabenau asks. Kalla starts to answer. Spatola interrupts and asks the same question. Kalla pauses. “I think that’s part of the learning process,” he says, adding that the court has previously defined schools as “the marketplace of ideas.” “The Constitution,” Kalla says in closing, “does not shrink at the school gate,” a nod to the ruling in Tinker v. Des Moines (1969).
Klein signals time. The court, at last, is adjourned. But not before the four justices heap praise upon the nascent counselors.
“I commend you,” says Spatola, beaming. “When you are a faculty member at DA, you accept that students can write well. But what you just did was damn hard.” He shakes his head. “That was very impressive.
Fox lauds their handling of insistent and intricate questioning from the judges. Rabenau credits their solid grasp of case law and the specific details of the scenario. “You were thrown right into the frying pan here,” she says, laughing.
Barmer nods in agreement. “You were far less nervous than I was during my first argument,” she says. Barmer signals out Kalla and repeats his quote about the Constitution failing to shrink at the school gate. “That spoke to me,” she says.
Spatola, the longtime DA faculty member, can’t resist one final aside. If it were up to him as a teacher, he tells the onlooking students, he would have ignored the armbands if a student chose to wear one to this class. “I would have let it go,” he says.
He pauses to look at all of the DA students — and, perhaps, future litigators — seated before him.
“Students rule,” Spatola says, pumping a fist. Approving laughter ripples across the back of the room. They have indeed pleased the court.