The United States Supreme Court has long been a determining factor on major issues facing students and schools. But over the last several decades, says Justin Driver, a professor of law at the University of Chicago Law School, its decisions have actually undermined the protection of students’ Constitutional Rights.
“We don’t often think about schools as being shaped by constitutional law, but I when stepped back and was examining material, I noticed students had host of rights that are distinct when in the public schools and are quite different from when in the public park after school,” Driver says.
In his recent book, The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind, Driver takes a “panoramic look at Constitutional rights” in schools exploring some of the most divisive topics in our culture like free speech, religion, search and seizure, and corporal punishment. The latter is an issue that the Supreme Court had the opportunity to weigh in on in the 1970s when a student was severely paddled, but the Court refused to intervene, he says. This topic is one Driver speaks passionately about.
“[Corporal punishment is] not merely historical artifact,” he says, pointing out that 18 states still permit corporal punishment, with five states racking up nearly 70 percent of its occurrence. “[I hope to] elevate the salience of this issue. I think a lot of people are unaware that students are being beaten in public school today,” he says. “The Supreme Court will need to revisit this issue because I fear that the jurisdictions that retain the practice at this late date are not going to abandon it on their own.”
In this edition of the Harvard EdCast, Driver reflects on the history of Supreme Court education rulings and foreshadows legal issues that may be percolating in public schools today.
Jill Anderson: I'm Jill Anderson. This is the Harvard EdCast. University of Chicago Law professor, Justin Driver, thinks the rights of public school students are often undermined by the Supreme Court. Just take a look back at the past few decades and you can see a shift in how the Constitution holds up in schools, he says. Or consider how in 2019, corporal punishment is still allowed in 18 states. We spoke about this and some other landmark cases that shape public schools and why similar cases can be tried again and again.
Justin Driver: We don't often think about schools as being shaped by constitutional law, but when I stepped back and was examining this material, I noticed that students had a whole host of constitutional rights that are distinct when they are in the public schools. And that are quite different than the rights they have when they are in the public park across the street after school. And so one of the things I'm trying to do here is to offer a panoramic look at students constitutional rights by examining freedom of speech, and search and seizure, and equal protection, and the religion clauses that again assume a particular form in the public school. And I wanted to try to write the book in a way that would be accessible to non-lawyers, including teachers and administrators, who again, don't have a background in the law. But I wanted to be able to democratize the law and demystify the law so that people could understand these rights in a very basic way.
Jill Anderson: So have you encountered a lot of teachers and educators when you're going out talking? And I really would love to know what they come up and say to you?
Justin Driver: Right. Yeah. I have actually. One of the many venues that I've been in brought a group of educators and general counsels for school boards and that was a very rewarding experience for me. And one of the things that they mentioned was that they do encounter speech issues a great deal and many times when they are thinking about speech, they're thinking about online speech, when students are at home and writing things on Twitter or Facebook or whatever young people are using these days.
Those issues do sometimes make their way into the schoolhouse themself and it's a very difficult question for educators to wrestle with how to deal with those issues. And this is an area that the Supreme Court of the United States alas has refused to get involved in even though the lower federal courts have reached divergent rules on these questions about how permissible it is to regulate student speech online. Supreme Court has yet to get involved. And I do hope that the Supreme Court will wade into those waters.
Jill Anderson: So one of the things I did want to talk about was this tension between parents' rights to educate their children how they want to, and this comes up a lot with religion, and then students rights. So how do you get exposed to stimulating academic environments? How has SCOTUS engaged with this tension between rights to educate their children how they want to and students rights to be exposed?
Justin Driver: Yeah. It's a good question and the case that springs to mind when I think about that question is the foundational student's speech case called Tinker vs. Des Moines Independent School District. That was a case that involved students in the 1960s who wanted to wear black armbands to school in protest of the Vietnam War. And school administrators get wind of this and say, oh no, that's too hot of a topic. A graduate of the Des Moines schools died over in Vietnam. And if you wear those black armbands, his buddies who are still in school here are going to take you as dishonoring his memory and his legacy and his sacrifice.
And so the Supreme Court of the United States said that students do possess free speech rights and Justice Fortas wrote the opinion. He said, "it can hardly be argued that students shed their constitutional rights at the schoolhouse gate." And what was so important about the opinion is that he reconceptualized the role of students in schools. He says that students are not merely empty receptacles that are meant to be filled with information. Instead, students speaking to one another about the issues of the day is a vital part of the educational process itself.
And so as the opinion is written, it really does say that students possess these rights and that it would be a mistake to view them as solely springing from their parents. And it really is an innovative decision and it was far from obvious that it would have been decided that way. I found some polling data that suggested that a majority of Americans thought that students should not have free speech rights. And Justice Hugo Black wrote a very angry and vehement dissent saying that this was wrongly decided. So even on the court there was this disagreement that is typical of American society.
Jill Anderson: So shifting gears. The big big one that everyone talks about is Brown vs. The Board of Education. As we all know, schools are segregated more today than they were 50 something years ago. So why wasn't it sufficient enough for desegregating schools?
Justin Driver: Why didn't Brown work right? It's an important question. And I think that an important part of the answer to that question goes back to Brown itself. Brown is widely celebrated for it being unanimous. And one of the things I try to do in the book is to challenge that conventional wisdom by noting that there were costs associated with unanimity. That is to say, Chief Justice Warren talked to Stanley Reed the last holdout and said, we really need you to come along. And people too seldom entertain the effect of bringing Justice Reed on board and the way that that may have watered down the opinion.
It's possible that the opinion would have been more aggressive and assertive because there are lots of questions that are open after Brown vs. Board of Education. People said at the time, does Brown require integration? Or does it merely forbid segregation? And that was an incredibly important issue. And I should also say that those who valorize unanimity and say that the south would have really fought if there were a dissenting opinion, it seems to me that the south fought plenty ferociously even in the absence of a dissent in Brown vs. Board of Education.
But because of the Sphinx like character of that initial decision and importantly the Supreme Court's refusal to wade into this contested area in the aftermath of Brown vs. Board of Education, it really was slow out of the gates. And we are still I think dealing with that legacy today.
Jill Anderson: So there's been a couple other cases. I mean, do you think Louisville and Seattle's decisions that's going to be the last word from SCOTUS on this issue? I mean, are we going to hear more about this?
Justin Driver: I was a law clerk at the Supreme Court of the United States when the Supreme Court decided the parents involved in community schools case that you're alluding to. That was a case exactly as you say that was out of Louisville and Seattle where they have voluntary integration programs. And they said that we want our schools to reflect the racial diversity of our cities. And because of the persistence of residential segregation, we have these racially isolated schools. And so we're going to take account of race in order to have meaningful racial integration.
And the Supreme Court of the United States in 2007 when I was a law clerk really did perceive this as a battle over the legacy and the meaning of Brown vs. Board of Education. Chief Justice Roberts wrote an opinion that resulted in the invalidation of these programs. And he said that these programs are constitutionally indistinguishable from Jim Crow. He says, in the bad old days Brown invalidated programs that told children where they could go to school based on the color of their skin. He said, these programs tell children where they can go to school based on the color of their skin. It matters not one wit for constitutional purposes according to Chief Justice Roberts. Then the battle days, people were taking race to send people to separate schools and we should say to keep black people inferior. And in the modern era, people are interested in bringing people together.
So you know Justice Breyer, my old boss, wrote a very long and in my unbiased view a completely devastating dissenting opinion where he says, it's a cruel distortion of history, Justice Breyer says, to compare Topeka, Kansas of the 1950s to Louisville and Seattle of today. So you asked, that's going to be the last word? I doubt it. Justice Kennedy wrote an opinion only for himself that did allow some wiggle room for school districts who are interested in bringing about racial integration. And that could be eliminated in the future.
Justice Kennedy's replacement, Justice Kavanaugh, seems to take a more jaundiced view of race conscious decision making. He wrote an op-ed in the Wall Street Journal that was very critical of affirmative action. And so the parents involved, the remaining wiggle room that's open, could be eliminated and importantly affirmative action in higher education is something that could also be on the move in this area.
Jill Anderson: But in keeping with the idea of educational inequality, what are some other opportunities for SCOTUS to weigh in this area? I mean, inadequate school funding is huge. And do you see opportunities for some shifts and movement in that area?
Justin Driver: One thing to keep in mind is that the Supreme Court of the United States is incredibly important. It is not the only game in town, however. The Supreme Court heard a challenge to the school financing in the 1970s in a case called San Antonio Independent School District vs. Rodriguez. And many people thought that Rodriguez would prevail there leading to greater amounts of equity in school financing. The Supreme Court of the United States rejected that challenge in a 5 to 4 decision. And Justice Marshall wrote perhaps his most impressive opinion during his tenure on the court, in the 100th and final footnote, he said, you've lost in federal court, but you should turn your attention to state courts, which are interpreting the state Constitution.
And that's exactly what has happened. So in Texas and in many other states around the country, litigants have brought claims saying that state provisions require greater amounts of financing. And those claims have overwhelmingly been victorious. And so it's a process that takes a long period of time. Demetrio Rodriguez who was the named litigant noted in the late 1980s after the Texas Supreme Court required greater amounts of equity. He said that it was a bittersweet moment for him because while he celebrated the decision, it was too late for his own children to be beneficiaries. And this led one scholar to say that school finance litigation is like a Russian novel. He says it's long, it's tedious, and everybody dies in the end.
Jill Anderson: So you cover a lot of issues in the book. And so what for you is the most important or the one that really you think people need to be paying more attention to?
Justin Driver: The single most pressing issue for me is the issue of corporal punishment. The Supreme Court of the United States had an opportunity to reign in corporal punishment in the 1970s on the basis of truly egregious facts. James Ingram was a middle school student in Miami, Florida and he was on stage with some of his buddies during a school assembly. And he's instructed to leave the stage and is a bit slow to depart. And for that pretty classic adolescent act of insubordination, he is summoned to the principal's office where he supposed to receive five licks from a two foot long wooden paddle.
And when his turn arises, he protests. And then there are some assistant principals who grab him, bend him over the principal's desk, one is holding him by his arms and the other is holding him by the legs, and they deliver not five blows, but 20 blows. And this beating is so savage that he receives medical attention where a doctor prescribes cold compresses, pain relievers, sleeping pills, laxatives. I found a doctor's notes three days after the fact that noted there was a bruise that was six inches in diameter, it's tender purplish swollen, and also oozing fluid.
And this was part of a larger reign of terror that existed at this particular school where students were paddled for sitting in the wrong seat and for wearing the wrong socks. And you'd be hard pressed to identify, again, a more compelling set of facts for the court to intervene. The court refused in a 5 to 4 decision.
There was a claim under the cruel and unusual punishment clause of the Constitution's Eighth Amendment and Justice Powell said, this doesn't even qualify as punishment for purposes of the Constitution because it's not punishment that stems from a criminal conviction. And so this is the most important issue for me because this is not merely a historical artifact. Corporal punishment continues to exist in this great nation of ours. There are 18 states that now permit corporal punishment.
But in many ways, that overstates its prevalence because just five states account for more than 70% of the instances of corporal punishment. And those states are all located in the deep south. And it will come as no surprise to many of our listeners that students of color receive a disproportionate share of that corporal punishment.
And so if I have any single hope for the book it's that it will elevate the salience of this issue. I think a lot of people are just unaware that students are being beaten in public school today. And that it elevates a salience and that the Supreme Court will revisit this issue. And I say that the Supreme Court will need to revisit this issue because I fear that the jurisdictions that retain the practice at this late date are not going to abandon it on their own.
Jill Anderson: That's crazy that that could possibly still be happening.
Justin Driver: And this is an area where I actually think that there may be some ability on the current Supreme Court to cobble together a coalition of liberals and the libertarian inflected vision of constitutional law that some right leaning justices are drawn toward. If you're a libertarian after all, you have a skepticism of state authority. And in what arena is the state exercising dominion over individuals more acutely than hitting public school students. They are as I say the last group of Americans who can be hit by governmental officials for failing to follow instructions. And so that's the sort of thing that should make libertarians want to tear their hair out.
Jill Anderson: So just to clarify because I think you have answered this already, but he said is there five states remaining where that's?
Justin Driver: There are 18 states that do it, but five states all located in the deep south account for the overwhelming percentage of instances of corporal punishment.
Jill Anderson: Do you have any other thoughts, predictions, things that maybe you think are bubbling under the surface?
Justin Driver: Yes. There are a few issues that spring to mind that people should keep an eye on. One would be the issue surrounding trans students and access to restrooms. The Supreme Court of the United States agreed to resolve a case involving Gavin Grimm. And then declined to do so ultimately. It's a question of when, not whether the court will need to revisit that issue.
Another issue to keep an eye on is Plyler vs. Doe, which deals with the rights of unauthorized immigrants to receive a public education. The Supreme Court of the United States invalidated a Texas statute that sought to exclude unauthorized immigrants from public school. John Roberts, when he was a young attorney working in the Reagan administration, co-authored a memorandum suggesting that that case was wrongly decided. And I could quite easily imagine there being five justices on the current court that would like to revisit that issue and reverse in effect Plyler vs. Doe.
The final issue that I'd identify is thinking about religion in public school. Over the last 15 years or so, the traditionally hot button issue of religion in schools has been turned way down. But Justice Kavanaugh seems likely to view these matters differently than did Justice Kennedy. When Kavanaugh was an attorney, he filed an amicus brief in a case called San Antonio Independent School District vs. Doe, which dealt with prayer at a high school football game led by a student. And the Supreme Court found that was an establishment clause violation. Kavanaugh suggested in his brief that it should have come out the other way.
And so I think that we are poised to see religious matters, and establishment clause, and free exercise claims make a resurgence at the Supreme Court of the United States. And I fear that the law is going to move in an unhelpful direction.
Jill Anderson: Justin driver is a professor of law at the University of Chicago Law School. He is the author of The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind. I'm Jill Anderson. This is the Harvard EdCast, produced by the Harvard Graduate School of Education.