THE SUPREME COURT AND PUBLIC SCHOOLS.

AuthorChemerinsky, Erwin
PositionBook review

THE SCHOOLHOUSE GATE: PUBLIC EDUCATION, THE SUPREME COURT, AND THE BATTLE FOR THE AMERICAN MIND. By Justin Driver. New York: Pantheon Books. 2018. P. 429. $35.

INTRODUCTION

Professor Justin Driver (1) has written a brilliant book. The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind focuses on the Supreme Court and public elementary and secondary schools. He looks at all the major areas where the Court has considered constitutional issues arising in the public school context: free speech, school discipline, investigations of students, inequalities based on race and sex and income, and religion.

In each area, Professor Driver presents the major Supreme Court decisions and often tells the underlying story of the litigation. He relates the Court's rulings to the social issues of the time, and he describes the public reaction to the major decisions. I found this aspect of the book fascinating and original, as Professor Driver looks to what followed the decisions and describes the reactions in newspapers and by politicians. The book is comprehensive, covering almost all the Supreme Court's decisions concerning public elementary and secondary education, but at the same time it is very accessible to a wide audience. The book is beautifully written. Professor Driver is a great storyteller, and throughout the book he is telling the reader about the people involved in the litigation and what it meant to them.

The book thus will be an invaluable resource for those looking at issues concerning the Constitution in public schools. In teaching Criminal Procedure this semester, I used the material in the book on police searches in schools and found things in the book that I have not seen elsewhere. At the same time, those with no prior knowledge of constitutional law can enjoy and be informed by this magnificent book. Professor Driver has managed to write a book that will be invaluable for scholars and constitutional litigators, while at the same time it is accessible and informative for a general audience.

At the risk of criticizing Professor Driver for the book he didn't write, in reading the book, I kept wondering: why? Why has the Court treated public schools in this way? What, if anything, provides an overall explanation for the Court's decisions concerning public schools? What does this tell us for the future?

I wanted a unifying thesis to explain the Court's actions across doctrinal areas. Professor Driver's thesis is a modest one. In both his Introduction and Conclusion, he emphasizes how many constitutional issues have been litigated in the public education context. In the Introduction he writes: "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." (2) In the Conclusion, Professor Driver says: "Surveying the legal landscape of the United States since the late nineteenth century, it is breathtaking to step back and observe how many of the Supreme Court's decisions that meaningfully advance the causes of constitutional liberty and constitutional equality have arisen from clashes in public schools" (p. 423).

I wish, though, that this outstanding book had a more ambitious thesis. The book is far more descriptive than normative, though in the concluding chapter Professor Driver offers a few areas where he would like to see changes: more protection for free speech for students, limits on corporal punishment in schools, and greater application of Fourth Amendment rights in schools (pp. 426-27). Yet he presents these proposals only briefly. Again, it may be unfair, but I wanted to see more about how to solve the problems Professor Driver identifies--such as the failure to desegregate schools or to correct the tremendous wealth inequalities in public education.

In this Review, I want to focus on these two points. First, what explains the Supreme Court's decisions as to public schools? Second, are there solutions and are they likely to occur in the future? My answer to these questions is one of pessimism: the Supreme Court's decisions, as much or more than in any area of constitutional law (and as Professor Driver rightly points out, schools involve almost all areas of constitutional law), are entirely the product of the justices' ideologies. Professor Driver--and I--want to see more protection of free speech, greater safeguards when students are disciplined, stronger protection of Fourth Amendment rights in schools, and far more equality in public education. With a very conservative Court likely for many years to come, the law in these areas is going to become much worse.

  1. WHY?

    Across the many areas of constitutional law that Professor Driver considers, there are often two competing visions of the role of the Constitution in public schools. One view stresses the importance of applying the Constitution in elementary and secondary schools. This approach says that if we want to teach our children that the Constitution matters, they must see it applied in their schools. The other approach sees public schools as authoritarian institutions and emphasizes the need to give deference to school officials; that is, enforcing rights in schools is incompatible with the need to defer to school authorities.

    Each vision is expressed in many of the cases and often is central to the differences between the majority and the dissent. For example, in Tinker v. Des Moines Independent Community School District, the majority eloquently spoke of the importance of protecting free speech in schools and declared: "It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." (3)

    Justice Hugo Black's dissent could not have been more different. He said that "[t]he Court's holding in this case ushers in what I deem to be an entirely new era in which the power to control pupils by the elected 'officials of state supported public schools ...' in the United States is in ultimate effect transferred to the Supreme Court." (4) He wrote: "I deny, therefore, that it has been the 'unmistakable holding of this Court for almost 50 years' that 'students' and 'teachers' take with them into the 'schoolhouse gate' constitutional rights to 'freedom of speech or expression.'" (5)

    Likewise, six years later in Goss v. Lopez, the Court held that students must be accorded due process before a suspension. (6) But the dissent sounded remarkably like that in Tinker:

    The Court holds for the first time that the federal courts, rather than educational officials and state legislatures, have the authority to determine the rules applicable to routine classroom discipline of children and teenagers in the public schools. It justifies this unprecedented intrusion into the process of elementary and secondary education by identifying a new constitutional right: the right of a student not to be suspended for as much as a single day without notice and a due process hearing either before or promptly following the suspension. (7) This same tension was evident in New Jersey v. T.L.O., where the Court held that students and their possessions may be searched if there is reasonable suspicion. (8) The majority emphasized the need for deference to school officials:

    Against the child's interest in privacy must be set the substantial interest of teachers and administrators in maintaining discipline in the classroom and on school grounds. Maintaining order in the classroom has never been easy, but in recent years, school disorder has often taken particularly ugly forms: drug use and violent crime in the schools...

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