Anthony F. Cottone, Esq., Solo practitioner in Providence Hearing officer and counsel for RI Department of Education.
Justin Driver, J.
In the Introduction to The Schoolhouse Gate: Public Education, the Supreme Court and the Battle for the American Mind (Pantheon Books, 2018), Justin Driver notes that "[o]n any given weekday, during school hours, at least one-sixth of the U.S. population can be found in a public school,"1 and quoting Justice John Paul Stevens, Driver adds that "'the schoolroom is the first opportunity most citizens have to experience the power of government... [t]he values they learn there they take with them in life.'"2 Indeed, Driver argues that the public school, which occupies a "central place in the nation's cultural imagination," has "served as the single most significant site of constitutional interpretation within the nation's history?'3
After thus underscoring the importance of his subject, the author promises to present what he suggests is the "first effort" to describe the narrative surrounding the development of this body of constitutional law in its "full range."4 And Driver, a Brown alumnus whose qualifications are guaranteed to give anyone an inferiority complex,5 does exactly that in 429 impeccably-written pages, with an additional one hundred pages of notes.
The book is divided by topic into seven chapters covering Supreme Court cases involving: (1) race, culture, religion and patriotism; (2) freedom of expression; (3) student discipline; (4) students' right to privacy; (5) racial segregation; (6) school funding, gender and immigration; and (7) religion. In each chapter, the author succinctly summarizes the significant cases, provides portraits of involved students and their families, describes relevant and often unknown or underreported details about the justices and applicable political dynamics, and then compares contemporaneous reactions to the cases from the media and academia with the current consensus (or lack thereof). And while Driver's own usually conventionally liberal opinions are interjected throughout the narrative, the author also fairly and thoroughly represents opposing points of view.
The author's treatment of Justice Robert Jackson's opinion in West Virginia State Board of Education v. Barnette,6 which declared that it was unconstitutional to expel public school students for refusing to recite the Pledge of Allegiance, and of the pair of decisions collectively referred to as Brown v. Board of Education7 -which, as every school child knows, declared that regulations prohibiting students of color from attending public schools with white children were unconstitutional - are alone worth the price of the book. In fact, most, if not all, of the decisions considered in Schoolhouse concern societal issues that still resonate, and contain some of the Court's most persuasive and eloquent writing on many of the core principles and values upon which our nation was founded. Revisiting these cases is especially instructive today when so many of these core principles and values are either being ignored, or many times brazenly violated.
West Virginia State Board of Education v. Barnette
Barnette is the story of the only two Jehovah's Witnesses attending Slip Hill Grade School in Charleston, West Virginia in 1942. The two sisters refused to say the Pledge of Allegiance at the start of school due to their religious convictions surrounding idolatry. Under a resolution adopted by the West Virginia Board of Education, their refusal subjected them to expulsion from school while, at the same time, subjected their parents to prosecution for child neglect as a result of the children's "unlawful absence."8 The challenged resolution tracked the language in the Court's decision two years prior in Minersville School Dist. v. Gobitis, where Justice Felix Frankfurter authored the majority opinion upholding flag-saluting requirements in schools10
Gobitis, however, was met with much criticism, especially from law professors, and according to the Justice Department there was a direct causal link between the decision and surging violence against Jehovah's Witnesses. Yet, as one might expect, the author of the majority opinion in Gobitis did not agree with the Court's rapid turnaround in Barnette, and in what Driver characterized as "an intensely personal, highly acerbic, dissent," Justice Frankfurter mounted an impassioned and eloquent argument for judicial restraint, a doctrine that has had particular resonance in the context of public schools, which the Supreme Court has historically considered to be properly of local concern.12 Not to be outdone, Justice Jackson, who is generally recognized as "the single finest writer in the Court's history,"13 penned what Judge Richard Posner claims "may be the most eloquent majority opinion in the history of the Supreme Court."14 According to Driver, the Barnette Court "upended the traditional idea that local authority over education was, from a constitutional perspective, necessarily a virtue."15 And the Court rejected the notion that compelling the recitation of the Pledge of Allegiance was justified on the ground that, in the words of the challenged resolution, "national unity is the basis of national security,”16 and, in words that seem particularly evocative today, opined that: [struggles to coerce uniformity of sentiment in support of some end thought essential to their time and country have been waged by many good as well as by evil men. Nationalism is a relatively recent phenomenon but at other times and places the ends have been racial or territorial security, support of a dynasty or regime, and particular plans for saving souls. As first and moderate methods to attain unity have failed, those bent on its accomplishment must resort to an ever-increasing severity. As governmental pressure toward unity becomes greater, so strife becomes more bitter as to whose unity it shall be.17
The public schools, according to the Court, were "educating the young for citizenship" which alone was "reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount the important principles of our government as mere platitudes." Significantly, the Court recognized in Barnette that the education received by the young often was more effectively transmitted by example than by compulsion. The notion that a primary purpose of the public schools is to educate "the young for citizenship" seems almost quaint today, when so many of the leaders in the field, especially in our under-resourced inner-city schools, take their cue (and marching orders) from politicians and their corporate donors who mistakenly equate public education with job training. It seems to me that the obsession with science, technology, engineering, and mathematics ("STEM"), which is by no means limited to inner-city schools, has exacted a societal price and will continue to do so if, as seems to be the case, it is accompanied by a corresponding lack of emphasis on "educating the young for citizenship," and more broadly speaking, on the humanities. We may improve our middling to poor Program for International Student Assessment ("PISA") rankings, but if the price is an even less informed and aware citizenry, where is the gain?
The ability of public schools to impart basic civic values also has been diminished by a resurgence in homeschooling in recent years, especially among evangelical Christians. According to data from the Department of Education, in 2012 some 1.8 million children, or 3.4 percent of the school-age population, were home-schooled. And although this resurgence has reduced the number of Establishment Clause challenges brought before the Court,21 the impact upon the body politic as a whole has not been as benign. It should not be overly surprising that children who are taught creationism and female...