Law & Courts

A Scholar’s-Eye View of School Law as High Court Gears for New Term

By Mark Walsh — September 25, 2018 6 min read

The U.S. Supreme Court opens its new term Oct. 1 with no education cases yet on its docket, but with the potential for several to be added in the coming months involving such issues as teacher First Amendment rights, employment discrimination in schools, and equal pay for teachers of similar experience.

In the pipeline are cases that could reach the justices about the rights of transgender students, the consideration of race in college admissions, and whether states must include religious schools in programs such as private school vouchers or textbook lending.

Now a new book assessing more than 100 years of U.S. Supreme Court constitutional cases involving students argues that “the public school has served as the single most significant site of constitutional interpretation within the nation’s history"—more so than cases emanating from churches, police stations, homes, automobiles, or public accommodations.

In The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind, Justin Driver, a professor at the University of Chicago Law School, presents a largely progressive, pro-student take on education law. He calls on the court to correct at least three areas where he contends it “botched or neglected” student rights over the years—free speech, corporal punishment, and searches and seizures in schools.

“In recent decades, the court has often foundered badly in its commitment to vindicating constitutional rights in schools,” Driver writes.

Prominent Topic

The court’s term was poised to open Monday with one seat still vacant, and the Senate embroiled in the controversial nomination of Brett M. Kavanaugh.

The sensitivity of issues involving schools and education was on full display in the contentious confirmation hearing for Supreme Court nominee Brett M. Kavanaugh, which included questions involving prayers by public school students, religious school vouchers, affirmative action in admissions, and the legacy of the Brown v. Board of Education desegregation decision.

Driver was among those paying close attention to the retirement this summer of moderate Justice Anthony M. Kennedy after 30 years.

“Justice Kennedy had, in my view, a highly uneven and idiosyncratic record in the arena of student rights,” Driver said. “It seems highly improbable that his replacement will embrace that same set of positions, thus the future of constitutional law in this vital domain appears very much up for grabs.”

But even as the high court appears poised to shift rightward after Kennedy’s retirement, Driver is optimistic on two fronts: that education law will be reinvigorated as a source of interest among academics and the legal community, and that student rights will gain vindication in some areas of the law.

“Overall, I’m hopeful that the future of students’ rights will improve,” Driver said in an interview.

Law Clerk Days

The author grew up in predominantly African-American southeast Washington, but attended racially diverse public elementary and middle schools in other parts of the nation’s capital before attending a Roman Catholic high school in the city.

Driver, 43, writes about how his interest in education law began at an unlikely age: when he received a three-day suspension in junior high when administrators learned that he and some friends had broken into a liquor cabinet on an overnight school field trip and gotten drunk.

“The white-hot feeling of shame experienced upon being suspended felt like anything but ‘a welcome holiday,’ which Supreme Court justices have contended characterizes a typical student’s view of suspension,” Driver writes.

Driver graduated from Brown University and completed a one-year teaching certification program at Duke University before becoming a high school civics and American history teacher and teaching in Durham, N.C. He was a Marshall Scholar at Oxford University and graduated from Harvard Law School before becoming a law clerk for both retired Justice Sandra Day O’Connor and Justice Stephen G. Breyer during the 2006-07 term of the court.

Significant Term

That was a significant term for education law. The court issued landmark opinions limiting the voluntary consideration of race in assigning students to schools and upholding the discipline of a student who had displayed a banner reading “BONG HiTS FOR JESUS,” at a school-sanctioned event, carving out an exception to student First Amendment speech rights for pro-drug messages.

Breyer wrote one of his most passionate dissents in the voluntary race case, Parents Involved in Community Schools v. Seattle School District, arguing that the court majority was threatening “the promise of Brown” and that the decision was one “the court and the nation will come to regret.”

Driver watched with interest as Kavanaugh declared at his confirmation hearing that the Brown decision was “the greatest moment in Supreme Court history” even if “the long march for racial equality is not over.”

“Of course, every lawyer believes Brown was rightly decided, but they ascribe radically different meanings to that decision,” Driver said in the interview.

From 1899 to 2011

The Schoolhouse Gate takes its title from Justice Abe Fortas’ majority opinion in the 1969 case Tinker v. Des Moines Independent Community School District, which upheld the right of students to wear black armbands to protest the Vietnam War as long as school was not substantially disrupted. “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” Fortas wrote.

(As Driver spoke about his book at a luncheon for University of Chicago law school alumni in Washington last week, Mary Beth Tinker, one of the students suspended for wearing an armband in the Des Moines schools, attended as a guest.)

In his analysis of Brown, Tinker, and dozens of other Supreme Court constitutional decisions on student rights, Driver meticulously provides the background, weighs the opinions, and examines contemporaneous press coverage and opinion as well as academic interpretations. Driver believes later student speech rulings have undermined Tinker, and he calls for overruling the 1977 decision in Ingraham v. Wright, which refused to outlaw corporal punishment.

Driver also argues that the court’s landmark 1985 decision in New Jersey v. T.L.O., which authorized school administrators to search students under a more relaxed standard than that required for the police, is a poor fit for an age when school resource officers are in every school and often can conduct searches under the lower “reasonable suspicion” standard at the behest of administrators.

“The ascent of school resource officers has undercut the notion that students should invariably receive only watered-down Fourth Amendment protections, as too many schoolhouses now bear a disturbing resemblance to station houses,” Driver writes.

Driver has taught a course at the law school called “The Constitution Goes to School,” and he hopes his book will “reinvigorate education law as a field of intellectual inquiry” and as an interest of the judiciary.

“Students who have had their rights suppressed by the government in public schools,” Driver writes, “seem ill-positioned to become the sort of engaged, dynamic, and disputatious citizens upon whom our nation depends.”

A version of this article appeared in the September 26, 2018 edition of Education Week as School Law Perspectives as High Court Gathers


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