The Public School as the Preeminent Site of Constitutional Law

• Publication year: 2021
• Citation: Vol. 98

98 Nebraska L. Rev. 777. The Public School as the Preeminent Site of Constitutional Law

The Public School as the Preeminent Site of Constitutional Law

Justin Driver(fn*)

The 2019 Lane Lecture[DAGGER]

This is my first trip to Nebraska, but it has long been a land of fascination for me. I remember being eight years old and watching Mike Rozier, the incredible running back for the University of Nebraska, run all over the nation. He was my favorite player when I was a kid and I thought, "Someday I will make my way to Nebraska." That I am doing so today as the Lane lecturer is truly an honor. This is a wonderful, even august institution. I am humbled to join the distinguished collection of scholars who have previously delivered this lecture, and I am grateful to you all for attending.

I thought that I would begin my telling you a little bit about how I got interested in this subject. One of the first questions that people ask about my book is, "How long did it take to write?" Whatever else its virtues, it is not a short book. The answer to that question is that it took me either four years to write or three decades to write, depending upon how you count. After I joined the University of Chicago faculty in 2014, I turned my attention in earnest to writing the book and got away from law review articles for a while. But the roots of the project

1

go back to my being a kid growing up in Washington, D.C. in the 1980s.

I grew up in Southeast Washington, east of the Anacostia River, which is a predominately black neighborhood. Starting at a very young age, I traveled from far Southeast to upper Northwest Washington to attend fifth grade where the demographics of the city are quite different. Upper Northwest is the most privileged segment of Washington, D.C. That required me to get on a bus and two different subway lines and have a pretty long walk as well. I would think during this daily journey, "Why in the world am I having to wake up so early to get to fifth grade?" Also, "What are the opportunities that I am gaining as a result of this trek?" Conversely, "What are the opportunities that my neighbors are losing out on as a result of attending the neighborhood school?"

I also remember learning about Brown v. Board of Education right after I started fifth grade at John Eaton Elementary in the Cleveland Park section of Washington, D.C. This was 1985, just a few years after I was cheering for Mike Rozier, and I remember thinking, "Even though integration has theoretically been handed down, there are many all-black schools within shouting distance of the Supreme Court's Marble Palace." From a very young age, that made me think that there is often a yawning gap between law on the books and life in the streets. It is one thing for the Supreme Court of the United States to hand down a decision; it is quite another thing for it to become lived reality.

I thought I was going to become a public school teacher when I graduated from college. I got certified to teach public school. As part of that certification process, I taught U.S. history and civics. The truth is that at this point I knew desperately little about the students' constitutional rights. Therefore, one of the goals I have for the book is to try to render, in an accessible way, students' constitutional rights for teachers like me-or my former self-who are interested in students' constitutional rights but might have difficulty grappling with the legal materials. Too often law professors write about law in this incredibly abstract and rarefied way that is accessible only to fellow law professors. One of the goals that I have for the book is to try to democratize constitutional law-to try to make it accessible to non-lawyers. I want law professors to read my book, but I do not want only law professors to read my book.

One of the more gratifying experiences that I have had is being interviewed by a high school student who asked me really wonderful questions and offered pushback on some of the book. I thought that I reached my target audience; she was a high school junior at the time. Her name is Anna Salvatore. It is true that she is an unusual high school student-she is quite precocious. She runs a terrific blog called

2

"High School SCOTUS," so that is a strong indication that she is a fellow Supreme Court nerd. But nevertheless, Salvatore's engagement suggests the book is accessible, at least to particularly enterprising high school students.

This book examines the intersection of two distinctively American institutions: the public school and the Supreme Court. The United States has long exhibited an uncommonly strong belief in the importance of public education and its centrality to national identity. As Adlai Stevenson once remarked, "The free common school system is the most American thing about America."(fn1) But many other observers have suggested that the nation's faith in public education may be rivaled only by the faith it places in the judiciary to resolve critical disputes. In the 1830s, Alexis de Tocqueville's Democracy in America offered what remains the most famous formulation of this idea. "There is hardly a political question in the United States which does not sooner or later turn into a judicial one," Tocqueville contended.(fn2) Since this statement appeared, the federal judiciary-with the Supreme Court at its apex-has assumed only a more expansive role in American society.

For a long season, however, many observers believed that these two institutions should have nothing to do with each other. Elementary and secondary public schools, the thinking ran, were singularly local endeavors that educators should be free to administer without needing to worry about anything so grand as the Supreme Court's decisions interpreting the Constitution. Yet, as matters would turn out, the Supreme Court abandoned its traditional noninterventionist approach to public schools. In 1943, the Court dramatically reversed course in West Virginia State Board of Education v. Barnette, declaring it unconstitutional for public schools to expel students for refusing to salute the American flag. Barnette insisted that the Constitution "protects the citizen against the State itself and all of its creatures- Boards of Education not excepted. These have, of course, important, delicate, and highly discretionary functions, but none that they may not perform within the limits of the Bill of Rights."(fn3) Ultimately, Barnette marked merely the Court's first meaningful step on the path to-

3

ward establishing that students retained a wide array of constitutional rights within public schools. Even if those rights do not assume precisely the same contours that minors enjoy outside the public school context, the Court has consistently held that educators cannot disregard the Constitution's central protections. By 1969, less than three decades after Gobitis, the Supreme Court broadly announced that the era of separate spheres for law and education had ended: "It can hardly be argued that . . . students . . . shed their constitutional rights . . . at the schoolhouse gate."(fn4)

Although education and constitutional law were once viewed as fundamentally distinct entities, a panoramic view of this area now establishes that, without exploring the extensive interaction of the public school and the Supreme Court, it is impossible to grasp the full meaning of either quintessentially American institution. One cannot plausibly claim to understand public education in the United States today, that is, without appreciating how the Supreme Court's decisions involving students' constitutional rights shape the everyday realities of schools across the country. Conversely, one cannot plausibly hope to comprehend the role of the Supreme Court in American society without appreciating how its opinions involving public education reveal the judiciary's underappreciated capacity for both spurring and forestalling major social change.

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. No other arena of constitutional decision making-not churches, not hotels, not hospitals, not restaurants, not police stations, not military bases, not automobiles, not even homes-comes close to matching the cultural import of the Supreme Court's jurisprudence governing public schools. Houses of public education, though seldom viewed as legal entities by the general public, claim this mantle due to four closely related reasons.

The first reason that schools should be deemed our most significant theaters of constitutional conflict is owed to the sheer magnitude of public elementary and secondary education. Today, more than fifty million students attend public schools in the United States, and in order to function, they require a few million adults to serve as teachers, administrators, and support staff. Those figures mean that on any given weekday, during school hours, at least one-sixth of the U.S. population can be found in a public school-making it easily the single largest governmental entity that Americans encounter for sustained periods on a near-daily basis. Those ubiquitous interactions are, of course, governed by the constitutional parameters that the Supreme Court and lower courts have articulated for public education. Yet even

4

this large fraction dramatically...