law because Virginia failed to prove a compel- ling state interest in preventing interracial marriages. Legislation discriminating on the basis of religion or ethnicity, as well as those statutes that affect fundamental rights, also are inherently suspect. Depending on the facts of the case, legal resident ALIENS may be deemed a suspect class under the Equal Protection Clause, so courts will take a hard look at state laws barring aliens from government jobs. For example, in Bernal v. Faint er, 467 US 216, 8 1 L Ed 2d 175, 104 S Ct 2312 (1984), a state law prevented non- U.S. citizens from becoming notaries public. The Supre me Court struc k down th e statute because it could not withstand strict scrutiny. The state was unable to convince the Court of the necessity to keep aliens from becoming notaries public. Religion has also been deemed a suspect classification. However, this finding has been limited to lower federal courts and state courts. Konikov v. Orange County 302 F. Supp. 2d 1328 (M.D. Fla. 2004); Walsh v. Carney Hosp. Corp., 1998 WL 1470698 (Mass. Super. 1998). The U.S. Supreme Court has suggested that religion may be a suspect classification in dicta, but never in an express holding. Other classifications, such as those based on gender and illegitimacy (children born out of wedlock), are considered “quasi-suspect” classi- fications and are governed by an intermediate standard of JUDICIAL REVIEW. Gender DISCRIMINA- TION is justified only if the classification bears a fair and substantial relation to an important governmental interest. U.S. v. Virginia, 518 U.S. 515, 116 S. Ct. 2264, 135 L. Ed. 2d 735 (1996). This intermediate scrutiny, rather than the more restrictive test used for racial classifica- tions, has also been applied to gender-based AFFIRMATIVE ACTION programs. Discrimination against illegitimate children is justified only if the classification is “substantially relate d to a legitimate state interest.” Mills v. Habluetzel, 456 U.S. 91, 99, 102 S. Ct. 1549, 1554, 71 L. Ed. 2d 770, 778 (1982). Sexual-orientation discrimination receives mere rational-basis review when courts are reviewing laws affecting adoptions, guardian- ships, CHILD CUSTODY, visitation, housing, insur- ance, jury selection, medical services, procre- ation, professional licensing, or WORKERS’ COMPENSATION. However, discrimination based on sexual orientation may be reviewed more closely if it impacts a FUNDAMENTAL RIGHT, such as political participation. Attempts to discrimi nate against gays, lesbians, and bisexuals through voter-enacted initiatives have also encountered judicial hostility. In Romer v. Evans, 517 U.S. 620, 116 S. Ct. 1620, 134 L. Ed. 2d 855 (1996), the Court invalidated a voter-initiated state CONSTITUTIONAL AMENDMENT prohibiting the gov- ernment from acting to protect gays and lesbians from discrimination. Although the Court did not expressly refer to the classifica- tion as “suspect” or “quasi-suspect,” it did subject the initiative to very rigorous scrutiny. CROSS REFERENCES Equal Protection; Japanese American Evacuation Cases. SUSPENDED SENTENCE A sentence given after the formal conviction of a crime that the convicted person is not required to serve. In criminal cases a trial judge has the ability to suspend the sentence of a convicted person. The judge must first pronounce a penalty of a fine or imprisonment, or both, and then suspend the implementation of the sentence. There are two types of suspended sentences. A judge may uncondi tionally discharge the defendant of all obligations and restraints. An unconditionally suspended sentence ends the court system’s involvement in the matter, and the defendant has no penalty to pay. However, the defendant’s criminal conviction will remain part of the public record. A judge may also issue a conditionally suspended sentence. This type of sentence withholds execution of the penalty as long as the defendant exhibits good behavior. For example, if a person was convicted of shoplifting for the first time, the judge could impose thirty days of incarceration as a penalty and then suspend the imprisonment on the condition that the defendant not commit any crimes during the next year. Once the year passes without incident, the penalty is dis- charged. If, however, the defendant does commit another crime, the judge is entitled to revoke the suspension and have the defendant serve the 30 days in jail. Whether a conditionally suspended sentence is considered equivalent or complementary to a PROBATION order or is considered an entirely distinct legal action depends on the jurisdiction. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 458 SUSPENDED SENTENCE Under a probation order, the convicted person is not incarcerated but is placed under the supervision of a probation officer for a specified length of time. A person who violates probation will likely have his probation revoked and will have to serve the original sentence. In some jurisdictions a postponement of sentencing is also considered to be a suspended sentence. A postponement of a criminal sen- tence means that the judge does not pronounce a penalty immediately after a conviction. Courts use postponement and conditionally suspended sentences to encourage convicted persons to stay out of trouble. In most cases courts will impose these types of conditional sentences for less serious crimes and for persons who do not have a criminal record. Where there is overcrowding in jails, suspended sentences for petty crimes may be used to prevent further congestion. SUSPICION The apprehension of something without proof to verify the belief. Suspicion implies a belief or opinion that something is somehow inappropriate, based upon facts or circumstances that do not constitute proof. In the case of Terry v. Ohio,, 392 U.S. 1 (1968), the U.S. Supreme Court held that police need only a “reasonable suspicion,” based on “specific and articulable facts” sur- rounding a person’s behavior, that criminal activity is (or or has been or soon will be) in progress, to have grounds to STOP AND FRISK a person without a warrant. In the 1983 case of Michigan v. Long, 463 U.S. 1032 (1983), the Court cited Terry in holding that police could constitutionally search compartments of auto- mobiles based on reasonable suspicion. SUSTAIN To carry on; to maintain. To affirm, uphold or approve, as when an appellate court sustains the decision of a lower court. To grant, as when a judge sustains an objection to testimony or evidence, he or she agrees with the objection and gives it effect. v SUTHERLAND, GEORGE George Sutherland served as associate justice of the U.S. Supreme Court from 1922 to 1938. A conservative jurist, Sutherland opposed the efforts of Congress and state legislatures to regulate business and working conditions. During the 1930s he was part of a conservative bloc that ruled unconstitutional major parts of President FRANKLIN D. ROOSEVELT’s NEW DEAL program. Sutherland was born on March 25, 1862, in Buckinghamshire, England. When Sutherland was a young child, his parents immigrated to the United States, settling in Provo, Utah. Sutherland graduated from Brigham Young University in 1881 and attended the University of Michigan Law School in 1882 and 1883. He was admitted to the Michigan bar in 1883 but returned that same year to Utah, where he established a law practice in Salt Lake City. Sutherland took an interest in politics and served in the territorial legislature. In 1896, after Utah had become a state, Sutherla nd was elected to the first Utah Senate as a REPUBLICAN ▼▼ ▼▼ George Sutherland 1862–1942 18501850 19001900 19251925 19501950 18751875 ❖ ❖ ◆◆ ◆ 1862 Born, Buckinghamshire, England 1861–65 U.S. Civil War 1863 Sutherland's father converted to Mormonism and moved family to Provo, Utah 1883 Admitted to Michigan bar, moved back to Utah 1901–03 Served in U.S. House 1897–1901 Served in Utah state Senate 1923 Wrote majority opinion in Adkins v. Children's Hospital 1905–17 Served in U.S. Senate 1914–18 World War I 1932 Wrote opinions overturning convictions of the "Scottsboro boys" in Powell v. Alabama 1935 Joined majority to strike down NIRA in Schechter Poultry Corp v. United States 1936 Joined majority to strike down the Agricultural Adjustment Act of 1933 in United States v. Butler 1939–45 World War II 1942 Died, Stockbridge, Mass. 1932 FDR elected president, promised "New Deal" 1922–38 Served as associate justice of the U.S. Supreme Court ◆◆◆◆ GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SUTHERLAND, GEORGE 459 PARTY member. In 1900 he was elected to the U.S. House of Representatives, and in 1905 he became a U.S. senator from Utah. Despite Sutherland’s reputation as a politi- cal conservative in Congress, he did support President THEODORE ROOSEVELT’S reform pro- grams. He also supported WORKERS’ COMPENSA- TION legislation for railroad workers and the NINETEENTH AMENDMENT to the U.S. Constitution, which provided for women’s suffrage. Never- theless, he believed that individual rights were paramount and that government should not intrude on most economic activities. After being defeated in the 1916 Senate election, Sutherland became involved in na- tional Republican politics and served as an adviser to President WARREN G. HARDING, who was elected in 1920. Sutherland’s name had been mentioned for several years as a possible Supreme Court appointee, and in September 1922 Harding nominated Sutherland to the Court. Sutherland joined a Supreme Court domi- nated by conservatives. Like the conservative majority, Sutherland believed in the doctrine of SUBSTANTIVE DUE PROCESS, which held that the DUE PROCESS Clauses of the Fifth and Fourteenth Amendments to the U.S. Constitution could be invoked to impose limits on the substance of government regulations and other activities by which government affects “life, liberty, and property.” Since the 1880s, the Supreme Court had invoked substantive due process to strike down a variety of state and federal laws that regulated working conditions, wages, and busi- ness activities. Sutherland also adhered to the concept of liberty of contract, which held that the govern- ment should not interfere with the right of individuals to contract with their employers concerning wages, hours, and working condi- tions. Sutherland wrote the majority opinion in Adkins v. Children’s Hospital, 261 U.S. 525, 43 S. Ct. 394, 67 L. Ed. 785 (1923), in which the Court struck down a federal MINIMUM WAGE law for women workers in the District of Columbia. Sutherland concluded that employer and em- ployee had the constitutional right to negotiate whatever terms they pleased concerning wages. Sutherland rejected the idea that Congress had the authority to correct social and economic disparities that hurt society in general. With the STOCK MARKET crash of 1929 and the Great Depression of the 1930s, the conservative majority on the Court came under intense public and political scrutiny. Franklin D. Roosevelt’s election in 1932 signaled a change in philosophy concerning the role of the federal government. Roosevelt’s New Deal was pre- mised on national economic planning and the creation of administrative agencies to regulate business and labor. This was anathema to Sutherland and his conservative brethren. From 1933 to 1937 the Court struck down numerous New Deal measures. Sutherland, along with Justices JAMES C. MCREYNOLDS, WILLIS VAN DEVANTER , and PIERCE BUTLER, formed the core of opposition to federal efforts to revitalize the economy and create a social safety net. The so-called Four Horsemen helped strike down as unconstitutional the NATIONAL INDUSTRIAL RECOV- ERY ACT OF 1933 in Schechter Poultry Corporation v. United States, 295 U.S. 495, 55 S. Ct. 837, 79 L. Ed. 1570 (1935), and the Agricultural Adjustment Act of 1933 in United States v. Butler, 297 U.S. 1, 56 S. Ct. 312, 80 L. Ed. 477 (1936). Roosevelt responded by proposing a court- packing plan that would have added an additional justice to the Court for each member over the age of 70. This plan targeted the Four Horsemen and, if implemented, would have canceled out their votes. Although Roosevelt’s George Sutherland. PHOTOGRAPH BY HARRIS & EWING. COLLECTION OF THE SUPREME COURT OF THE UNITED STATES. [THE] SADDEST EPITAPH WHICH CAN BE CARVED IN MEMORY [FOR] A VANISHED LIBERTY IS THAT IT WAS LOST BECAUSE ITS POSSESSORS FAILED TO STRETCH FORTH A SAVING HAND WHILE YET THERE WAS TIME . —GEORGE SUTHERLAND GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 460 SUTHERLAND, GEORGE plan was rejected by Congress, the national debate over the role of the federal government and the recalcitrance of the Supreme Court led more moderate members of the Court to change their positions and vote in favor of New Deal proposals. With the tide turning, Sutherland retired in 1938. Despite his conservative views on govern- ment and business, Sutherland defended liberty rights as well as property rights. In POWELL V. ALABAMA, 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158 (1932), Sutherland overturned the convictions of the “Scottsboro boys,” a group of young African Americans sentenced to death for an alleged sexual ASSAULT on two white women. Sutherland ruled that the SIXTH AMENDMENT guarantees adequate legal counsel in state criminal proceedings. In his opinion in United States v. Bhagat Singh Thind (1923), however, Sutherland de- nied Thind, a native of India, naturalized U.S. citizenship based on the fact that Thind did not fall within the popular interpretation of the term Caucasian (i.e., white), despite anthropo- logical evidence suggesting the contrary. The ruling held until the passage of the Luce-Cellar Act in 1946, which granted Indians NATURALIZA- TION rights. Sutherland died on July 18, 1942, in Stockbridge, Massachusetts. FURTHER READINGS Olken, Samuel R. 2002. “The Business of Expression: Economic Liberty, Political Factions and the For- gotten First Amendment Legacy of Justice George Sutherland.” William and Mary Bill of Rights Journal 10 (February). Olken, Samuel R. 1997. “Justice George Sutherland and Economic Liberty: Constitutional Conservatism and the Problem of Factions.” William and Mary Bill of Rights Journal 6 (winter). SWANN V. CHARLOTTE- MECKLENBURG BOARD OF EDUCATION During the 15 years that followed the Supreme Court’s momentous SCHOOL DESEGREGATION deci- sion in BROWN V. BOARD OF EDUCATION, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954), school boards throughout the South did little to eliminate racial separation in the public schools. In some cases school boards merely announced a race-neutral school attendance policy. In other cases white-dominated school boards closed schools that were ripe for INTEGRATION and instead built new schools in suburban areas that would be virtually white-only. The NAACP and the federal government became increasingly frustrated by these methods and sought reli ef in the federal courts. As federal courts began to issue desegregation plans, questions arose over whether court-ordered supervision of local schools was proper. In Swann v. Charlotte- Mecklenburg Board of Education, 402 U.S. 1, 91 S. Ct. 1267, 28 L. Ed.2d 554 (1971) (also known as North Carolina State Board of Education v. Swann) the Supreme Court issued another landmark decision, ruling that federal courts could exercise their remedial powers to end a dual school system divided by race. The Court made clear that when school boards refused to act in GOOD FAITH, the federal courts had broad discretion to order, implement, and oversee the desegregation of school systems. In addition, the Court endorsed the use of busing to ensure desegregation. Swann was a controversial deci- sion that guided federal courts for almost 30 years. By the late 1990s, however, federal courts had ended oversight of school desegregation and busing began to lose favor. The Charlotte-Mecklenburg school system included the city of Charlotte and the surround- ing Mecklenburg County, North Carolina. The school district was very large, encompassing over 550 square mile s of territory. During the 1968–1969 school year 84,000 pupils attended 107 schools in the district, with 71 percent of the students white and 29 percent black. Of the 24,000 black students, 21,000 attended schools within the city of Charlotte. Of that number, 14,000 black students attended 21 schools with were eithe r completely black or more than 99 percent black. These statistics demonstrated that the racial SEGREGATION persisted 15 years after the Brown decision. James E. Swann and a number of other black parents filed suit in 1965, asking the federal court to mandate that the school system be desegregated. The school board responded by passing a plan based on geographic ZONING with a free-transfer provi- sion. Swann and the other plaintiffs returned to court in 1968 and asked again for a plan that would dismantle the dual system and impose a unitary system upon the school district. The district court conducted many hearings on the issues and found that the school district had drawn school attendance zones in such a way as to result in segregated education. The GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SWANN V. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION 461 key issue, however, was how to remedy this situation. The school board proposed closing seven schools and restructuring attendance zones. The court found little merit in this proposal, finding that more than half the black and white students would remain in heavily segregated schools. The court appointed an expert, Dr. John Finger, to prepare another desegregation plan. The “Finger Plan” slightly modified the school board’s plans for high school and junior high school students but was more drastic when it came to handling the 76 elementary schools in the system. This plan proposed using zoning, paring, and other grouping techniques so that student bodies in the school district would range from nine percent to 38 percent black. Black students in grades one through four would be bused from the inner city to predominantly white schools in the suburbs, while white students in the fifth and sixth grades would be bused to predom i- nantly black schools in Charlotte. Under this plan, nine inner city schools were grouped with 24 suburban schools. The Supreme Court, in a unanimous decision, upheld the desegregation plan and outlined what powers a federal court could employ to desegregate a public school system. Chief Justice WARREN BURGER, writing for the Court, noted that it had issued a second Brown decision in 1955 that addressed the need for school systems to move with “all deliberate speed” to end state-imposed segregated school systems. Brown v. Board of Education, 349 U.S. 249, 75 S. Ct. 753, 99 L. Ed. 1083 (1955). Despite the Court’s desire that desegregation decisions be made by local school boards, it concluded that ve ry little progress had been made when it issued its 1968 decision, Green v. County School Board, 391 U.S. 430, 88 S. Ct. 1689, 20 L. Ed. 2d 716 (1968). In Green the Court set out standards for measuring success in creating a unitary school system that no longer displayed the vestiges of segregation. The decision had made clear that school districts must take definite action to desegregate all aspects of public education or face court- imposed action. With Swann, Chief Justice Burger saw the opportunity to “make plain” and to “amplify guidelines” that would assist school districts and the lower federal courts. The Court first stated that once a school district had been found in violation of the Fourteenth Amendment’s EQUAL PROTECTION CLAUSE , a dist rict court’s “equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies.” Though judges could only emplo y these vast powers on the basis of a constitutional violation, once a violation had been established a court could fashion a remedy based on the scope of the violation. Chief Justice Burger rejected the school board’s claim that Title IV of the CIVIL RIGHTS ACT OF 1964 limited the federal courts’ ability to implement the Brown decision. He concluded that the 1964 act restricted the courts from dealing with “de facto segregation,” where racial imbalance in the schools had occurred without the discrimi natory actions of state officials. The North Carolina schools had been segregated by state laws and therefore were subject to correction by the federal courts. Chief Justice Burger addressed four main issues concerning student assignments to par- ticular schools: (1) the use of racial balance or quotas; (2) the elimination of one-race schools; (3) limitations on attendance zones; and (4) the use of busing to correct state-enforced racial school segregation. As to the first issue, Burger emphasized that courts should not use a “fixed mathematical” ratio of white to black students for each school. A school district did not have the obligation to ensure that “every school in every community must always reflect the racial composition of the school system as a whole.” In the case of the Charlotte-Mecklenburg schools, however, the court-approved ratio of 71 percent to 29 percent was “no more than a starting point in the process of shaping of a remedy.” The limited use of this ratio was within the discretion of the district court. As to one-race schools, Chief Justice Burger found that these would require “close scrutiny to determine that school assignments are not part of state-enforced segregation.” Moreover, where a school system has a history of segregation, the courts were warranted to presume that one-race schools had been created as a result of past or present discriminatory action. As to the altering of school attendance zones, the Court admitted that federal courts had employed “drastic” gerrymandering to ensure a mix of white and black students. Such actions were acceptable as “in terim corrective measure[s]” and were not “beyond the broad remedial powers of a court.” GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 462 SWANN V. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION The use of busing to desegregate public schools was the most controversial remedy imposed by the federal courts. Chief Justice Burger noted that bus transportation had been an integral part of U.S. schools for years and that 39 percent of public school children had been bused during the 1969–1970 school year. The “normal” use of bus transportation, coupled with the finding that neighborhood school attendance zones would no t disman tle the dual school system, led the Court to conclude that busing was an acceptable remedy. Burger pointed out that under the desegregation plan many studen ts would actually have shorter bus rides. To rule out busing would doom desegregation. The Court pointed out that the school system would someday be judged unitary and that the federal court would withdraw from its oversight of the system. At that point the school board would be free to consider how it wanted to draw its attendance zones. This happened in 1999 when the district court releas ed the Charlotte-Mecklenburg district from its order. The school district then ended busing and returned to neighborhood attendance zones. Segregation of the school district al so returned. FURTHER READINGS Chemerinsky, Erwin. 2006. Constitutional Law: Principles and Policies. 3d ed. New York: Aspen Publishing. Kluger, Richard. 1976. Simple Justice. New York: Random House. Orfield, Gary, Susan E. Eaton, and Elaine R. Jones. 1997. Dismantling Desegregation: The Quiet Reversal of Brown v. Board of Education. New York: New Press. Schwartz, Bernard. 1986. Swann’s Way: The School Busing Case and the Supreme Court. New York: Oxford Univ. Press. CROSS REFERENCES Civil Rights Acts; Discrimination. SWAT TEAMS First developed in the 1960s by local law enforcement agencies, Special Weapons and Tactics units, or SWAT teams, have become common in police departments throughout the United States. These teams generally consist of small numbers of highly trained officers who use special weapons and tactics to handle high- risk situations. Although SWAT teams have been used successfully during countless num- bers of altercations since their development, some critics charge that their use exceeds the traditional POLICE POWER given to the states. SWAT teams began during the turbulent 1960s. In August 1966, Charles Joseph Whit- man climbed a tower on the campus of the University of Texas at Austin and shot 47 people, killing 15. The incident took place during a 90-minute span, and police officers were ill-equipped to handle the situation. Officers eventually climbed the tower and reached Whitman’s position, killing him after he tried to shoot the officers. Police departments recognized that their forces needed officers trained to handle these types of incidents. The Los Angeles Police Department (LAPD) had struggled to contend with rioters during the 1966 Watts riots. Officers found that traditional police and riot-control tactics were ineffective against the disorganized nature of the mobs they faced. During the same year, LAPD officers were ambushed by Jack Ray Hoxsie, who began a shooting spree from within his home. Officers failed in their attempts to shoot back at Hoxsie. They were successful in subduing the situation only after they threw tear gas through a broken window and then stormed the house. Former LAPD Police Chief Daryl Gates is credited with developing the first SWAT team in 1966. Gates was then a patrol area com- mander in charge of the Metro Division of the LAPD. The division was a floating police unit responsible for handling unusual criminal activity within the city of Los Angeles. Gates and others in the LAPD studied guerrilla warfare tactics of the U.S. military, determining that new teams trained to handle these danger- ous situations needed to be smaller, with each member of the team given a specific purpose. The LAPD SWAT teams gained notoriety in 1969 when one of the teams was used to serve an ARREST WARRANT on two members of the Black Panthers, a radical and armed activist group known nationally for espousing revolutionary politics. The mission was successful. Five years later, the LAPD SWAT force, in conjunction with federal SWAT teams, engaged in an altercation with the Symbionese Liberation Army (SLA), best known for its KIDNAPPING of publishing heiress PATTY HEARST. During the altercation between the SWAT team members and the SLA, the house in which the SLA GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SWAT TEAMS 463 members were hiding caught fire, eventually killing the six members. The number of SWAT teams in police departments began to rise during the 1970s and has risen steadily ever since. An estimated 90 percent of police departments in cities with populations of more than 50,000 maintain SWAT teams. The vast majority of federal law enforcement agencies have also established specialized response units. SWAT is among a number of names given to such units by federal and local agencies. Others include Special Response Team (SRT), Emergency Response Team (ERT), Special Emergency Response Team (SERT), and Emergency Services Unit (ESU). SWAT teams are designed to work only in extraordinary circumstances, such as those involving hostages, hijackers, and suspects who have barricaded themselves. The most common use of SWAT teams is to assist other officers in serving arrest warrants when the subject of the warrant is considered a high risk. SWAT teams generally enter and secure the premises where the subject is located so that officers charged with serving the warrant can do so. The use of SWAT teams is rather common in the appre- hension of suspected drug dealers, who are often armed and considered dangerous. In 1981 Congress passed the Military Cooperation with Law Enforcement Officials Act, which allows the U.S. military to provide equipment and facilities for civilian police in the war on drugs. As a result, SWAT teams could be armed with military-style, high-tech arms and other equipment to carry out their functions. Moreover, many members of SWAT teams receive their training from military units. The result is that some SWAT teams now resemble paramilitary units more than they represent a division of a civilian police force. The widespread use of SWAT teams has been criticized as the militarization of civilian law enforcement. Critics note that some SWAT teams are now used in routine police matters and that the paramilitary approach adopted by the SWAT teams is not appropriate for enforce- ment of the law. Law enforcement supporters often respond that criminals are much more dangerous than they were in the past and that traditional civilian policing methods are ineffec- tive against many types of criminals. In April 1999, more than 30 years after Charles Jose ph Whitman climbed a tower on the campus of the University of Texas and shot 47 people, a SWAT team was called to respond to a shooting at Col umbine High School in Littleton, Colorado. There, stu dents Eric Harris and Dylan Klebold embarked on a shooting spree that resulted in the deaths of 15 people. The SWAT team faced harsh criticism after the widely publicized massacre, amidst claims that they had taken too long to get into the building. The official report concerning the incident reflected that the delay was attributable to the mass confusion at the scene and the conflicting information that the officers were given during the incident. In the years following the Colum- bine massacre, law enforcement agencies across the nation have continued to evaluate changes that could be implemented to save lives and increase safety in the future. FURTHER READINGS Chronis, Peter G. May 16, 2000. The Columbine Report: SWAT Team Hampered By Confusion. www.denverpost. com (accessed September 21, 2009). Mijares, Tomas C., Ronald M. McCarthy, and David B. Perkins. 2000. The Management of Police Specialized Tactical Units. Springfield, Ill.: C.C. Thomas. Singh, Karan R. 2001. “Treading the Thin Blue Line: Military Special-Operations Trained Police SWAT Teams and the Constitution.” William and Mary Bill of Rights Journal 9 (April). Smith, Dave. April 20, 2009. A Decade after Columbine: We’re Still Learning, Teaching.www.policeone.com (accessed September 21, 2009). Snow, Robert L. 1999. SWAT Teams: Explosive Face-Offs with America’s Deadliest Criminals. Cambridge, Mass.: De Capo Press. CROSS REFERENCE Police Power. v SWAYNE, NOAH HAYNES Noah Haynes Swayne served as associate justice of the U.S. Supreme Court from 1862 to 1881. A prominent Ohio attorney for almost 40 years before becoming a judge, Swayne was President ABRAHAM LINCOLN’s first Supreme Court appoint- ment. His tenure on the Court was relatively undistinguished. Swayne was born on December 7, 1804, in Frederick County, Virginia. He studied law with two Virginia attorneys and was admitted to the Virginia bar in 1823. His antislavery views proved troublesome, however, and he moved his law practice to Coshocton, Ohio. Appointed county attorney in 1826, Swayne soon became involved in DEMOCRATIC PARTY politics. An ardent GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 464 SWAYNE, NOAH HAYNES supporter of President ANDREW JACKSON, Swayne was elected to the Ohio state legislature in 1829. In 1830 Jackson named him U.S. district attorney, a position he held for almost ten years. He moved to Columbus, Ohio, to administer his office. By 1840 Swayne had returned to private practice, but he served on many public commissions in Ohio, i ncluding a commission to arbitrate a boundary dispute between Ohio and Michigan. He left the Democratic party in 1856 because he disagreed with the party’s support of SLAVERY and joined the newly formed REPUBLICAN PARTY . As a lawyer, he represented several runaway slaves in legal proceedings in which slaveholders sought to reclaim their property. In 1862 Justice JOHN MCLEAN, an Ohio native and friend of Swayne, died suddenly. Swayne used his Ohio political connections to lobby for an appointment to the Supreme Court. Presi- dent Linc oln nominated Swayne in January 1862. He was confirmed two days later. Though Swayne spent almost twenty years on the Supreme Court, he left no mark on the institution. An inveterate politician, he lobbied for the position of chief justice in 1864 and 1873. During the U.S. CIVIL WAR, he was a consistent supporter of Lincoln’s emergency war measures, including the imposition of MARTIAL LAW and the issuance of paper money called “greenbacks,” which were not redeemable for gold or silver. In addition, he upheld the constitutionality of a federal INCOME TAX im- posed during the Civil War (Springer v. United States, 102 U.S. (12 Otto) 586, 26 L. Ed. 253 [1881]). Swayne retired from the Court in 1881. He died on June 8, 1884, in New York City. SWIFT V. TYSON For almost 100 years, the U.S. Supreme Court’s decision in Swift v. Tyson, 41 U.S. (16 Pet.) 1, 10 L. Ed. 865 (1842), allowed the federal courts to create their own body of civil COMMON LAW in cases in which the parties were from different states. In exercising its diversity jurisdiction, a federal court was free to ignore the pertinent common law of the state in which it sat and apply federal common law. Though it was intended to encourage the development of a uniform set of COMMERCIAL LAW principles, the Swift decision was sharply criticized as an unwarranted intrusion into areas reserved to state courts. Swift involved a legal dispute over the law of negotiable instruments. A NEGOTIABLE INSTRU- MENT is a document by which one party promises to pay either money or goods to Noah H. Swayne. THE LIBRARY OF CONGRESS ▼▼ ▼▼ Noah Haynes Swayne 1804–1884 1800 1850 1875 1900 1825 ❖ ❖ ◆◆◆◆◆◆◆◆ 1804 Born, Frederick County, Va. 1812–14 War of 1812 1823 Admitted to Va. bar 1826 Served as prosecuting attorney of Coshocton County (Ohio) 1829 Served in Ohio legislature 1836 Served in Ohio legislature 1830–39 Served as U.S. attorney for Ohio 1856 Switched from Democrat to the new Republican Party 1861–65 U.S. Civil War 1864 Lobbied for chief justiceship but it went to Salmon Chase 1873 Lobbied for chief justiceship but it went to Morrison Waite 1862–81 Served as associate justice of the U.S. Supreme Court 1881 Upheld federal income tax imposed during the Civil War in Springer v. United States 1884 Died, New York City GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SWIFT V. TYSON 465 another party, called the “bearer.” For example, a check written on a person’s bank account is a negotiable instrument. Negotiable instruments used by business are called COMMERCIAL PAPER and played an important role in the U.S. economy in the early nineteenth century. One unresolved issue was whether the bearer could assign a BILL OF EXCHANGE to a THIRD PARTY, who could then collect on the obligation. The question of assignments was at the heart of Swift. A third-party assignee of a bill of exchange drawn in New York presented it for payment and was refused. The third party, who was not a New York resident, sued in New York federal district court. The New York COMMON LAW held that a bill of exchange could not be assigned, and the federal judge ruled accord- ingly. Because New York was the leading commercial center in the United States, this ruling had serious implications for the national economy. On appeal, the U.S. SUPREME COURT over- turned the decision by reinterpreting the federal RULES OF DECISION ACT, originally section 34 of the JUDICIARY ACT OF 1789 (1 Stat. 73). In its original form, the act provided that “the laws of the several states shall be regarded as rules of decision in trials at common law in the courts of the United States in cases where they apply.” The main issue before the Court concern ed the meaning of the word laws. The Court considered whether the word was limited to legislatively enacted statutes or included state common law decisions as well. Justice JOSEPH STORY, writing for a unani- mous court, concluded that the term laws did not include common law decisions. Such decisions were “at most, only evidence of what the laws are, and are not, of themselves, laws.” Except for decisions of a “local” nature, such as those pertain ing to REAL ESTATE, a federal judge was not required to apply a “general” state common law rule involving commerce to a diversity-based case. Under the Rules of Deci- sion Act, a federal judge could apply only state statutes to a legal dispute. Story, who was the leading U.S. authority on COMMERCIAL LAW and commercial paper, believed it was imperative for the growth of the U.S. economy that the United States develop a uniform national law of commerce for the federal courts to apply. Therefore, he declared that federal common law permitted the assignment of commercial paper. Economic and legal historians have concluded that Swift did contribute to the growth of multistate transactions and the national economy. Busi- nesses were able to assign commercial paper without fear that a state would invalidate the assignment. Nevertheless, the decision angered many who believed a federal common law interfered with the right of states to develop their own principles of commercial law. The Swift doc- trine also led to situations in which the SUBSTANTIVE LAW applied to litigants might be determined simply by the fortuity of their residences. Two cases might have different legal results depending only on whether the PLAINTIFF and the DEFENDANT were from the same state or from different states. This led to significant unfairness and forum shopping. For example, in Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab and Transfer Co., 276 U.S. 518, 48 S. Ct. 404, 72 L. Ed. 681 (1928), a Kentucky corporation dissolved and reincorpo- rated in Tennessee to obtain the benefit of substantive federal common law against another Kentucky corporation. Faced with mounting criticism of Swift, in 1938 the Supreme Court overturned the deci- sion in ERIE RAILROAD CO. V. TOMPKINS, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188. Federal courts were again required to apply state law, whether statutory or common, in diversity-jurisdiction cases. In a radical shift from Swift, federal district courts periodically refer questions to state supreme courts, asking for a ruling on what the state law is on a specific issue. Although federal common law no longer exists in the same form as it did under Swift,a type of common law still exists in the federal courts today. The most notable area of federal common law involves the rights and obligations of the United States government itself. FURTHER READINGS Cleveland, Coker B. 2001. “Steamfitters Local Union No. 420 Welfare Fund v. Philip Morris: Is Swift v. Tyson Dead?” American Journal of Trial Advocacy 25 (summer). Anastaplo, George. 2006. Reflections on Constitutional Law. Lexington: Univ. Press of Kentucky. CROSS REFERENCES Constitutional Law; States’ Rights. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 466 SWIFT V. TYSON SYLLABUS A headnote; a short note preceding the text of a reported case that briefly summarizes the rulings of the court on the points decided in the case. The syllabus appears before the text of the opinion. The syllabus generally is not part of the opinion of the court but is prepared by a legal editor employed by a private law book company that publishes court decisions to serve as a quick reference for a researcher. Some courts prepare the syllabus for their own decisions, but in many states the syllabus has no legal effect. Ohio is one exception, however, where the court-prepared syllabus is part of the decision and is considered a statement of the law. In most states, only the opinion of the court containing the original statement of the grounds for the opinion may be used in lega l papers in a lawsuit to convince a court or jury of a particular point of law. CROSS REFERENCE Court Opinion. SYMBOLIC DELIVERY The constructive conveyance of the subject matter of a gift or sale, when it is either inaccessible or cumbersome, through the offering of some substi- tute article that indicates the donative intent of the donor or seller and is accepted as the representa- tive of the original item. For example, when one individual wishes to make a gift of a car to another individual, he or she might do so by handing over the keys and all documents indicating ownership thereof. In the law of real property, the transfer of a twig or clod of dirt from the grantor of land to the grantee was LIVERY OF SEISIN that constituted symbolic delivery of the right of legal possession or ownership of land pursuant to a freehold estate. I n the early twenty-first century, the transfer of a deed from the seller to a buyer demonstrates the change in owner ship of propert y. SYMBOLIC SPEECH Symbolic speech consists of nonverbal gestures and actions that are meant to communicate a message. The term symbolic speech is applied to many types of nonverbal communication. Many political activities, including marching, wearing armbands, and displaying or mutilating the U.S. flag, are considered forms of symbolic expression. The U.S. Supreme Court has held that this form of communicative behavior is entitled to the protection of the FIRST AMENDMENT to the U.S. Constitution, but the scope and nature of that protection have varied. Courts have also referred to sym bolic speech as speech plus or speech plus conduct. Initial Recognition of Symbolic Speech under the First Amendment The Supreme Court first gave symbolic speech First Amendment protection in Stromberg v. California (283 U.S. 359, 51 S. Ct. 532, 75 L. Ed. 1117 [1931]). The Court overturned a California statute that prohibited the display of a red flag as a “sign, symbol or emblem of opposition to organized government.” But not until the VIETNAM WAR era did the Cour t articulate the rules to be followed in determining whether symbolic expression is entitled to the protection of the First Amendment. Symbolic Speech during the Vietnam War In United States v. O’Brien (391 U.S. 367, 88 S. Ct. 1673, 20 L. Ed. 2d 672 [1968]), the Court reviewed the conviction of David Paul O’Brien for violating a 1965 amendment to the Selective Service Act (50 U.S.C.A. App. §§ 451 et seq.) that prohibited any draft registrant from know- ingly destroying or mutilating his draft card. O’Brien had burned his Selective Service card on the steps of the South Boston Courthouse at a rally protesting the Vietnam War. He claimed that his act of burning his card was symbolic speech protected by the First Amendment. The government argued that it could prohibit this conduct because it had a legitimate interest in requiring registrants to have draft cards always in their possession as a means of ensuring the proper functioning of the military draft. The Supreme Court sided with the govern- ment, with Chief Justice EARL WARREN rejecting “the vie w that an apparently limitless variety of conduct can be labeled speech whenever the person engaging in the conduct intends thereby to express his idea.” When “speech” and “nonspeech” elements are combined in the same course of conduct, a lesser burden will be placed on the government to justify its restric- tions. Accor dingly, the Court announced the appropriate constitutional standard: [A] government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial government GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SYMBOLIC SPEECH 467 . U.S. Supreme Court ◆◆◆◆ GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SUTHERLAND, GEORGE 4 59 PARTY member. In 190 0 he was elected to the U.S. House of Representatives, and in 190 5 he became a U.S ACT OF 193 3 in Schechter Poultry Corporation v. United States, 295 U.S. 495 , 55 S. Ct. 837, 79 L. Ed. 1570 ( 193 5), and the Agricultural Adjustment Act of 193 3 in United States v. Butler, 297 U.S “beyond the broad remedial powers of a court.” GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 462 SWANN V. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION The use of busing to desegregate public schools