The Supreme Court cases that de­fined stu­dents’ con­sti­tu­tional rights

The Washington Post Sunday - - BOOK WORLD - RE­VIEW BY ELOISE PASACHOFF

In 1969, as mass protests about the Viet­nam War and civil rights roiled Amer­ica, the Supreme Court is­sued an opin­ion up­hold­ing the right of stu­dents to protest peace­fully at school with a mem­o­rable and oft-quoted line: “It can hardly be ar­gued that . . . stu­dents . . . shed their con­sti­tu­tional rights to free­dom of speech or ex­pres­sion at the school­house gate.” In “The School­house Gate: Pub­lic Ed­u­ca­tion, the Supreme Court, and the Bat­tle for the Amer­i­can Mind,” Univer­sity of Chicago law pro­fes­sor Justin Driver presents a mas­ter­ful anal­y­sis of the Supreme Court’s role in pub­lic school stu­dents’ con­sti­tu­tional rights more gen­er­ally.

Across seven chap­ters or­ga­nized the­mat­i­cally around dif­fer­ent lines of Supreme Court cases, Driver — a for­mer law clerk to Jus­tices Stephen Breyer and San­dra Day O’Con­nor — makes the bold claim that “the pub­lic school has served as the sin­gle most sig­nif­i­cant site of con­sti­tu­tional in­ter­pre­ta­tion within the na­tion’s his­tory.” This claim is easy to be­lieve af­ter his en­cy­clo­pe­dic dis­cus­sions of the en­tire range of Supreme Court cases on stu­dent rights un­der nu­mer­ous con­sti­tu­tional pro­vi­sions: the First Amend­ment’s guar­an­tees of free­dom of speech and free ex­er­cise of re­li­gion, and its pro­scrip­tion against gov­ern­ment es­tab­lish­ment of re­li­gion; the Fourth Amend­ment’s ban on un­rea­son­able searches and seizures; the Fifth Amend­ment’s pro­tec­tions against self-in­crim­i­na­tion; and the 14th Amend­ment’s guar­an­tees of equal pro­tec­tion and lim­its on de­pri­va­tions of lib­erty or prop­erty with­out due process.

As Driver demon­strates, it was not ob­vi­ous 100 years ago that th­ese con­sti­tu­tional pro­tec­tions would ex­tend to stu­dents at all or, if they did, how fully they would ap­ply. The book’s por­tray­als of fierce bat­tles over th­ese rights in pub­lic schools — a pri­mary place of “na­tional iden­tity” and “cul­tural anx­i­eties” — am­ply jus­tify Driver’s el­e­va­tion of the pub­lic school as an im­por­tant lo­cus of con­sti­tu­tional in­ter­pre­ta­tion where, time af­ter time, the court “has played an in­stru­men­tal role in shap­ing con­sti­tu­tional re­al­i­ties.”

Driver also makes two pow­er­ful re­lated ar­gu­ments. First, the Supreme Court started off in the right di­rec­tion on school de­seg­re­ga­tion, stu­dent speech rights and school dis­ci­pline, but in each area has weak­ened its ini­tial hold­ings in a way that di­min­ishes “both the na­tion’s pub­lic schools and our con­sti­tu­tional or­der.” Sec­ond, the court has reached ac­cept­able con­sti­tu­tional com­pro­mises in a num­ber of im­por­tant ar­eas, in­clud­ing the role of re­li­gion in pub­lic ed­u­ca­tion and the mean­ing of “equal pro­tec­tion” as it ap­plies to sin­gle-sex schools.

The book is best when it goes be­yond the jus­tices’ opin­ions to give broader con­text to each case, in­clud­ing con­tem­po­ra­ne­ous re­sponses by na­tional and lo­cal news­pa­pers and the back­ground sto­ries of coura­geous stu­dent plain­tiffs and their par­ents. Though Driver doesn’t make the con­nec­tion ex­plicit, many of th­ese sto­ries re­late to cur­rent so­ci­etal de­bates. For ex­am­ple, to­day’s foot­ball play­ers who kneel dur­ing the na­tional an­them draw some of the same heated re­ac­tions as did Je­ho­vah’s Wit­ness ele­men­tary school stu­dents 80 years ago when they re­fused to re­cite the Pledge of Al­le­giance. (Af­ter first ap­prov­ing school ex­pul­sions on th­ese grounds in 1940, the Supreme Court re­versed course in 1943 and for­bid them as a vi­o­la­tion of the First Amend­ment.)

The book also ben­e­fits when Driver dis­cusses his per­sonal con­nec­tion to the ma­te­rial he an­a­lyzes. For ex­am­ple, he hu­mor­ously de­scribes his child­hood pas­time of watch­ing re­runs of “Three’s Com­pany” on TV as “painstak­ing, ex­haus­tive field re­search” that helps flesh out his anal­y­sis of the “most renowned — if not ex­actly the most cel­e­brated — speech ever de­liv­ered at a high school as­sem­bly,” a nom­i­na­tion for stu­dent body pres­i­dent that the Supreme Court later deemed “lewd,” “vul­gar,” “in­de­cent,” “of­fen­sive” and “sex­u­ally ex­plicit,” but that the stu­dent speaker in ques­tion jus­ti­fied as in keep­ing with stu­dent in­ter­est in “shows like Three’s Com­pany, with their heavy use of sex­ual hu­mor.”

More poignantly, Driver re­counts his feel­ings of shame, af­ter he re­ceived a three-day sus­pen­sion in the ninth grade for drink­ing al­co­hol with some friends on an overnight field trip, to counter the Supreme Court’s anal­y­sis of school sus­pen­sions as “a wel­come hol­i­day,” re­flect­ing on the ex­pul­sion he prob­a­bly would have faced had his “school­boy in­dis­cre­tion” taken place in more re­cent years un­der school “zero tol­er­ance” poli­cies that the Supreme Court has largely let stand. Driver also mov­ingly de­scribes his par­ents’ ef­forts to take him out of their seg­re­gated com­mu­nity across the Ana­cos­tia River in South­east Wash­ing­ton to en­roll him in Alice Deal Ju­nior High School in Up­per North­west (“where the ed­u­ca­tional out­comes were much brighter and the stu­dent bod­ies, not in­ci­den­tally, were much whiter”). This ef­fort re­quired his fa­ther to camp out overnight in front of the school to be the first in line to en­roll his out-of-bound­ary son.

Pow­er­ful as the book is, how­ever, it feels in­com­plete on the role of the Supreme Court in pub­lic schools in two di­men­sions. First, ar­guably the most im­por­tant part of the Con­sti­tu­tion that struc­tures stu­dent re­la­tion­ships with their schools is en­tirely ab­sent from the book: the spend­ing clause, which grants Congress the au­thor­ity to spend money in pur­suit of the “gen­eral wel­fare” in ex­change for state and lo­cal gov­ern­ments agree­ing to ac­cept con­di­tions im­posed on the use of that money. Driver’s fo­cus on the rights-grant­ing pro­vi­sions of the Con­sti­tu­tion in­stead of the pro­vi­sions de­sign­ing our gov­ern­ment’s struc­ture ob­scures how the Supreme Court’s in­ter­pre­ta­tions of the scope of the spend­ing clause have dra­matic im­pli­ca­tions for how far Congress may reach into the school­house gate.

Sec­ond, a large part of the Supreme Court’s docket in­volves the in­ter­pre­ta­tion of statutes, not the Con­sti­tu­tion. The court has is­sued many im­por­tant de­ci­sions on the scope of stu­dent rights un­der ed­u­ca­tion statutes. For ex­am­ple, does Ti­tle IX’s ban on dis­crim­i­na­tion by schools on the ba­sis of sex pro­tect stu­dents from peer sex­ual ha­rass­ment? Does the In­di­vid­u­als with Dis­abil­i­ties Ed­u­ca­tion Act grant stu­dents with dis­abil­i­ties the right to at­tend a pri­vate school at pub­lic ex­pense if the pub­lic school is fail­ing to pro­vide them with a “free, ap­pro­pri­ate pub­lic ed­u­ca­tion” — and what does a “free, ap­pro­pri­ate pub­lic ed­u­ca­tion” mean in the first place? Driver ac­knowl­edges this gap, say­ing the court’s role in statu­tory rights de­serves its own book, but it is still hard to come away with a sense that he has fully ex­am­ined “the in­ter­sec­tion of two dis­tinc­tively Amer­i­can in­sti­tu­tions: the pub­lic school and the Supreme Court” with­out it.

Nei­ther of th­ese points un­der­cuts the value of what Driver has writ­ten, how­ever. In fact, the num­ber of closely divided cases he both praises and treats as set­tled law is strik­ing — for ex­am­ple, two de­ci­sions from 1982 that re­quired pub­lic schools to ad­mit un­doc­u­mented im­mi­grants and that lim­ited schools’ abil­ity to re­move books from their li­braries that school board mem­bers wished to cen­sor. Prece­dents like th­ese are up for grabs as the Supreme Court un­der­goes a per­son­nel shift un­der Trump, with the ar­rival of Jus­tice Neil Gor­such and the re­tire­ment of Jus­tice Anthony Kennedy. Against this back­ground, Driver’s book makes for es­pe­cially timely and im­por­tant read­ing. Eloise Pasachoff, a for­mer law clerk to Jus­tice So­nia So­tomayor, is a law pro­fes­sor at the Ge­orge­town Univer­sity Law Cen­ter.

By Justin Driver Pan­theon. 564 pp. $35

THE SCHOOL­HOUSE GATE Pub­lic Ed­u­ca­tion, the Supreme Court, and the Bat­tle for the Amer­i­can Mind

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