How education law became a cultural flashpoint

Prof. Justin Driver’s new book was either four years or three decades in the making, depending how you count it.

There are the recent years he spent researching and writing The Schoolhouse Gate: Public Education, the Supreme Court and the Battle for the American Mind (Pantheon Books). And then there is the lifetime of personal experiences and scholarly endeavors that triggered his inquiry, providing myriad vantage points that inspired him, again and again, to consider how the law shapes public schools.

Driver is, at once, the public school student whose dad slept part of a night in his car outside a school so he could be among the first in line to enroll his son in an out-of-district junior high, and he’s the young man who spent a year teaching high school in Durham, North Carolina. He’s the Supreme Court clerk who watched his boss, Justice Stephen Breyer, wrestle with cases that shaped the legacies of two of America’s most momentous education decisions, and he’s the graduate student at Oxford University who examined school-funding disparities. He’s a scholar of constitutional law, one who developed a Law School class called The Constitution Goes to School, and he’s the father to two young children.

"I’ve been inexorably drawn to these concepts over the years," said Driver, the Harry N. Wyatt Professor of Law. "This book represents the culmination of years of thinking."

Driver grew up in a predominantly black neighborhood in Southeast Washington, D.C., with parents who were determined to give Driver and his older brother the tools they needed to succeed academically. For years Driver commuted to a more affluent school on the opposite side of the city, taking a bus and two subway lines and then walking nearly a mile--a trek that gave him time to think about equality, education and opportunity. Not everyone, he knew, had parents like his.

Over the years, he also realized this: Mllions are shaped for better or worse by their early educational experiences--making the public school "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," he wrote in The Schoolhouse Gate .

Part of it comes down to sheer size: Most Americans are required to attend school, and few have options beyond public education.

"It is the first sustained exposure that most citizens have to a governmental entity," Driver said. "These early encounters with the government play a foundational role in shaping attitudes that students will have with them for the rest of their days."

Although Driver includes plenty of legal analysis, The Schoolhouse Gate is, at its core, a story about people. It’s about the children and families whose experiences led them to the center of precedent-setting cases--individuals like John and Mary Beth Tinker, who fought for their right to express a political belief by wearing black armbands to school; or Gavin Grimm, who fought to use the bathroom that matched his gender identity (an issue that still has not been resolved); or Oliver Brown, who fought to send his daughter Linda to the all-white school that was just seven blocks from their house. It is also about--and for--the people who make up one of the book’s most important audiences: the millions of students, parents and teachers whose lives are affected each day by the laws that govern their schools.

"I was aiming for a stimulating work of constitutional law that is also accessible to the people who confront these questions on the front lines--sophisticated students, parents, teachers and administrators," he said. "Many people who work in the educational profession are aware that constitutional principles inform what they do, but they might have only a vague understanding of the actual conflict that led to the rule and even the rule itself."

Over more than 400 pages, Driver unpacks decades of history, examining broader messages about inequality, cultural anxiety and the ways in which education law mirrors America’s broader scuffle with civil liberties. In the past century, the Supreme Court has considered public education cases dealing with religion, patriotism, free speech, due process, search and seizure, racial segregation, gender discrimination, unauthorized immigration, corporal punishment, random drug testing, funding disparities, transgender bathroom rights and more.

"The public school has become a major flashpoint for the larger cultural conflicts that pervade our society," Driver said.

At points, he questions cherished narratives--wondering, for instance, whether the mission to achieve unanimity in Brown v. Board of Education in 1954 hindered future efforts to address persistent racial isolation in urban school districts, particularly in northern cities like Chicago. He also challenges the idea that the Supreme Court tends to follow the predominant views of the American public, pointing to the 1962 ban on teacher-led prayer in Engel v. Vitale , which drew widespread public rebuke, and even the much-lauded Tinker v. Des Moines Independent Community School District , a landmark 1969 ruling that affirmed students’ right to engage in symbolic antiwar speech. Like Brown , Tinker has inspired decades of adulation: its 7-2 ruling was widely praised in the media, and the case ultimately paved the way for modern student protests like the 2018 anti-gun violence walkouts that took place in schools across the country.

But it was Justice Hugo Black’s vehement dissent that, in retrospect, most likely offered the better barometer of public opinion, Driver said. Although some dismissed Black’s view as an outlier perspective, it seems to have reflected "a deep wellspring of cultural anxiety" that schools would lose control of their students, Driver said, noting that several subsequent cases--including Morse v. Frederick, which allowed the suppression of speech that promoted drug use, and Bethel v. Fraser , which allowed the suppression of sexually suggestive language--limited Tinker ’s reach. For some, those cases were a relief and an overdue restoration of schoolhouse order.

Throughout the book, Driver examines the interplay between education law and public sentiment, tracing a meticulous history from one case to the next through public polling data, newspaper editorials and opinion columns, scholarly analysis, and other contemporary reports that offer insight into how each case fit its era.

The pictures he paints are rich and multilayered. They are rife with public misunderstandings about the Supreme Court’s intent-- Engel v. Vitale , for instance, didn’t prevent students from praying on their own, and Goss v. Lopez didn’t provide procedural protections more elaborate than simple hearings. He chronicles the complex tangle of fears that has driven public debate over discipline and safety--describing, for instance, how school shootings have stoked support for increasingly invasive searches of students and their property--and he discusses close decisions that, had the timing or other details been slightly different, could have shifted the entire trajectory of education law.

"When you situate a case in the historical context, you can better understand what outcomes were plausible," Driver said. "I don’t believe that Supreme Court justices operate completely outside of society, but unlike many of my fellow law professors, I believe that there’s a much, much larger plausible range of outcomes on particular decisions rather than assuming, ’Of course the justices have to decide this way because they were born in this era.’"

Driver takes a normative approach, heralding the bravery of families whose cases fomented change and celebrating many of the rulings that validated students’ rights. The book, in fact, draws its name from Justice Abe Fortas’s famous line in Tinker : "It can hardly be argued that either students or teachers shed their constitutional rights. . . at the schoolhouse gate."

-Excerpted from a story that first appeared on the Law School website. Read it in its entirety here.

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

Justin Driver

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