Equality of Opportunity and the Schoolhouse Gate.

• Author: Adams, Michelle
• Position: Book review

The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind

BY JUSTIN DRIVER

PENGUIN RANDOM HOUSE, 20l8

BOOK REVIEW CONTENTS

INTRODUCTION 2305 I. BOOK OVERVIEW 2310 A. Comprehensive Coverage and Approach 2310 B. Strengths and Major Contributions 2312 C. The Cutting-Room Floor 2315 II. THE RIGHTTO EDUCATION 2319 A. San Antonio v. Rodriguez: School Funding's Impact on the 2320 Right to Education l. Implications Well Beyond Money 2320 2. Decades of Scholarly Outrage 2323 3. Imagining an Alternative Outcome 2324 B. Goss v. Lopez: Suspension as a Deprivation of a Right to 2329 Education C. Plyler v. Doe: The Unavoidable Tension Between Access and 2333 the Right to Education III. THE RIGHT TO EQUAL AND INTEGRATED EDUCATION 2336 A. Parents Involved and the Spirit of Brown 2337 B. Implementing Brown: "It's Not the Bus. It's Us." 2341 C. The De Jure/De Facto Illusion 2346 CONCLUSION 2353 INTRODUCTION

Justin Driver's The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind excels in two key respects. As a book about education law, it weaves together disparate doctrines and discrete issues into a cogent whole. This is no small accomplishment, given the broad spectrum of questions the Supreme Court has addressed in schools: racial segregation, funding, immigration, free speech, religion, corporal punishment, suspension, and LGBTQ rights. Reviewing over a century of cases, Driver highlights compelling themes that allow the reader to see the Court's education cases as a long, ongoing conversation about the extent to which the Court must defer to educators while also protecting students' rights and enforcing the Constitution. Given the substance of these cases and their wide-ranging impact, Driver argues the Court's education cases have been underappreciated and are, in fact, potentially the most important venue in which the Court acts. (1) The Schoolhouse Gate puts education law on the map.

As a book about constitutional law, Driver's work may be even more significant. Driver aims to contest the growing conventional wisdom among academics that the Supreme Court is primarily a conservative institution that merely follows public opinion and, thus, does not play a major role in shaping society. (2) He details a number of major school cases--from segregation to free speech to immigration--in which the Court's decisions were entirely at odds with public opinion at the time they were released but managed to shift public opinion over the course of time. (3) He also recasts a number of cases that others have critiqued as failures, (4) convincingly arguing that the Court threaded a needle in those cases and delivered moderate opinions so as to avoid social backlash while still producing doctrinal victories for student rights. (5) In sum, for those not yet willing to give up on the Court, The Schoolhouse Gate is a breath of fresh air.

The breadth and ambition of The Schoolhouse Gate are its greatest strengths. But in an effort to construct a metanarrative, Driver treats all doctrines and issues as roughly equal in importance. (6) The various cases appear as data points in service of a larger story. Many scholars--including us--would argue that the Court's education cases are not equal. Some would insist free speech and religion cases have had the most significant effect on public education, while others would emphasize the influence of discipline, discrimination, and desegregation cases. (7) Rather than assign particular significance to any single area, Driver seeks to elevate the entire field of education law--an important accomplishment indeed. But one area--equality of educational opportunity--gets too little attention. Equality of educational opportunity includes the fundamental right to an education and school-segregation law. We argue these two lines of equality doctrine tower above the rest of education law. Deeper analysis of those two lines of doctrine, moreover, would reveal that they have the potential to reshape the entire metanarrative undergirding education law if properly understood.

The Schoolhouse Gate's introduction states:

One cannot plausibly claim to understand public education in the United States today... without appreciating how the Supreme Court's decisions involving students' constitutional rights shape the everyday realities of schools across the country.... At its core, this book argues that the public school has served as the single most significant site of constitutional interpretation within the nation's history. (8) In exploring that thesis, the book treats the Court's school cases as a series of tussles that involve two recurring conflicts. One is the doctrinal conflict over school authority. The Court consistently struggles to balance the clear requirements of the Constitution against the harms of interfering with and undermining school administrators. (9) In other words, the scope and appropriateness of a constitutional review of school policies is the major subtext of the Court's school cases.

The second is the conflict between society and the courts, with schools stuck in the middle. Driver does not frame it exactly that way. Rather, he emphasizes that the Court has decided many of our nation's most controversial cultural issues in the school context. (10) His conclusion regarding the importance of education law follows naturally from that point. But the question remains: why have schools played this role? The answer lies in public schools' unique ability to capture the "nation's cultural imagination," reflect its "social concerns," and "illuminate[] both the hopes and the fears" of the people. (11) Thus, when cultural and constitutional conflicts arise, litigants naturally choose public schools as their battlefield. This phenomenon alone justifies Driver's special attention to education law as a distinct strand of the Court's jurisprudence.

Driver explores both of these themes well, but, because of the scope of his book, he does so at a level of abstraction. Respect for schools' authority is about managing institutional relationships, and problems arise any time the Court reviews another branch of government's actions. This is not unique to education. Further, because cultural-legal wars will inevitably occur, so too will school cases. The way the Court shapes actual educational opportunities and experiences is another important part of the story. And understanding it requires a deeper examination of the theoretical and doctrinal underpinnings of the Court's cases, which we provide here.

The Schoolhouse Gate treats issues like school discipline, searches and seizures, desegregation, funding, and equal access as doctrinally and theoretically distinct--bound together by the Court's general concerns over judicial intervention and school authority. In doing so, Driver neglects the central unifying concern of the Court's most important cases: the nature and scope of the constitutional right to education. (12) In the Court's most significant cases, the tension over school authority is an outgrowth of the substantive weight and significance of the underlying right at stake--the right to education. (13) If the Court were to acknowledge such a right, it would have no choice but to intervene in various educational contexts. Without that right, the Court is free to afford considerable weight to policy implications and to tweak around the edges of educational opportunity without ever fully validating the principle that the educational opportunity should be equal. (14)

In short, while school cases consistently force the Court to make tough decisions regarding judicial intervention and school authority, the most central issue in the most important cases is whether the Constitution protects the right to education. Our nation has long been committed to such a right. (15) Various state constitutions have explicitly recognized it. (16) The Court routinely alludes to such a right. (17) But it has never affirmatively recognized it. As a result, the Court has condoned educational inequality as often as it has interrupted the practice. This failure is the sad lynchpin that undergirds the Court's most important cases.

This Review proceeds in three parts. Part I provides an overview of The Schoolhouse Gate and a critical assessment of its strengths, contributions, and limitations. Part II identifies the constitutional right to education as the most doctrinally and theoretically important issue in education law. Part II then details the right to education's implications in several of the Court's most important school cases. And finally, Part III examines the Court's school-integration jurisprudence, the area in which the right to equal education has been contested most consistently and most deeply.

1. BOOK OVERVIEW

   1. Comprehensive Coverage and Approach

      The Schoolhouse Gate's coverage is impressive. It persuasively puts to rest the notion that public education does not involve significant constitutional issues. (18) It does. Driver's thesis is that "schools should be deemed our most significant theaters of constitutional conflict." (19) His book reveals how school cases represent "the hopes and the fears that have captivated the American people during the last century." (20) Chapter One makes clear the controversial nature of school cases. The Court's very first education cases, like those of today, involved culturally divisive issues. From a doctrinal standpoint, the early cases are scattered, but they share common ground as battles over major cultural issues. Those cases waded into the racial, cultural, religious, and patriotic politics of the day.

      With that groundwork laid, Driver assigns the remaining chapters to each of the Court's major constitutional subjects as played out in the school context: freedom of speech, student punishment, student searches, racial segregation, equality of opportunity beyond race, and religion...