Q&A: Law Professor Justin Driver on the How the Law Affects Our Schools

Lloyd DeGrane ©The University of Chicago Law School.

Lloyd DeGrane ©The University of Chicago Law School.

In his authoritative, original, and insightful new book, The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind (Pantheon Books), Justin Driver argues that in no other realm of constitutional decision-making – including hospitals, police stations, or military bases – does the Supreme Court’s jurisprudence match the cultural impact it exerts in governing public schools.   

Driver, who spent a year teaching civics and American history in a Durham, North Carolina high school, was a law clerk for Justices Stephen Breyer and Sandra Day O’Connor and now is a constitutional law scholar and the Wyatt Professor of Law at the University of Chicago Law School. In his new book, Driver brilliantly analyzes the Court’s precedent-setting cases involving public education and draws on his own personal experience to write with empathy and insight about the children and families involved in these legal dramas. Driver argues that that the public schools are a flashpoint for the cultural conflicts in our history, from racial integration and gender discrimination to free speech and patriotism. He spoke about his new book for The National Book Review with Jim Kaplan, a graduate of the University of Chicago Law school, and a member of its advisory board, the Law School Council.

Q: Fifty-five or so years ago, when I was a child, the culture was very different:  African-Americans had no civil rights to speak of; adult women, regardless of education or social class, were mainly subservient to their husbands; gay people were entirely suppressed and actively persecuted.  The culture has clearly changed dramatically, perhaps to an extent matched only occasionally in previous 50-year increments in the country’s history.

But the law on social arrangements concerning education has not changed all that much.  Students can still be beaten at will by their teachers and principals; public schools are still mainly segregated by race and in some cases, ethnicity; and even fundamentalist religion still has its hooks into the schoolhouse through the Supreme Court-approved home schooling phenomenon.

Do you think it’s fair to say that the Supreme Court, in its education decisions, has acted consistently as the tip of the spear in a culture war to maintain white, Christian, male, straight supremacy in the society, even though a majority of the society has accepted the cultural change?

A: No, I believe that statement offers an unduly grim conception of the Supreme Court’s decisions in this area.

I certainly have major problems with many judicial opinions involving students’ rights, including along some of the lines you suggest.  To take only one glaring example, the Supreme Court’s refusal to outlaw corporal punishment in schools at this late date is, in my view, a constitutional abomination.  Nevertheless, it is important to bear in mind that the Supreme Court has also issued several important school decisions that have protected the rights of various minorities in our society.  For example, the Court has often interpreted the Establishment Clause to prohibit public schools from forcing students to be subjected to religious ideas that the students would deem objectionable.  In addition, the Supreme Court issued an important egalitarian decision in 1982, when it refused to permit unauthorized immigrants to be banned from attending public schools. 

Furthermore, students who wish to promote unpopular ideas have at least some ability to do so as a result of the Court’s decision in 1969 that honored students’ speech rights, a decision that quite plausibly could have come out the other way at that time.  The Court’s record is not nearly as strong as I wish that it had been during the last fifty-five years, but neither is it the unmitigated disaster area some observers suggest.    

Q: What happened to Brown v. Board as a Supreme Court precedent?  Old view:  Brown stands for the proposition that the Constitution forbids reimposition of African-American slavery by other means (“Separate-but-equal”; Jim Crow laws).  New View: Brown stands for the proposition that you can’t discriminate against white people for any reason because all racial categorization is impermissible (Louisville and Seattle integration cases).  Is that too harsh?  What do you think are the implications of this development?

A: Virtually all members of the legal community believe that Brown v. Board of Education was not only correctly decided, but that it was among the Supreme Court’s greatest decisions.  Yet that near-universal approbation masks the deep disagreements over what the decision actually means.  Did Brown require school integration, or did it merely forbid state-sanctioned segregation?  Brown initiated a fierce struggle for control of its meaning.  In 2007, the Supreme Court issued a decision called Parents Involved, which invalidated voluntarily enacted school integration programs in Louisville and Seattle because they classified students for the purposes of bringing students from different racial backgrounds together.  Chief Justice Roberts’s opinion could identify no constitutionally significant difference between Jim Crow segregation of the 1950’s and voluntary integration programs of the 2000’s.  That opinion was profoundly mistaken, in my view.  At the same time, however, I believe that it is important to realize that school districts continue to possess a variety of mechanisms that they could use to further school integration—if only there were more widespread public support for such initiatives. 

Q: Wisconsin v. Yoder (in 1976) more or less held that parents don’t have to send their children to public schools if to do so would undermine the parents’ religious worldview, and thus, their ability to transmit their religious view to their children unhindered by other contrary messages. 

Do you think the state (and its citizens) has a compelling interest in having its children exposed to a diversity of religious (and nonreligious) views, with a view toward an educated citizenry that can understand different religious and cultural viewpoints in a highly diverse society? 

Isn’t this essential to the kind of democratic society envisioned by the Constitution?  Why didn’t the Supreme Court agree?  Does the case come out any differently now? 

A: Yoder granted the Old Order Amish an exemption from compulsory school attendance laws.  The decision was written to apply not to any and all religious groups, but was instead expressly limited to the Old Order Amish because of their long history of economic self-sufficiency and their isolation from the larger American society.

I have trouble with that decision, as it effectively traps many citizens who may wish to exit the Amish community but feel powerless to do so given their highly truncated educations.  The Court’s major Free Exercise decision in Employment Division v. Smith from 1990 sought to preserve the Court’s prior decision in Yoder.  But given that Smith generally upholds neutral laws of general applicability, it is difficult to see how Yoder has not actually been undermined.  I hope that the Supreme Court will revisit Yoder in short order.        

As to some of the larger questions you raise, I personally believe that it is desirable to have minors exposed to people of different religious backgrounds.  I do not believe, however, that this exposure can somehow be mandated by, say, closing parochial schools and requiring students to attend public schools.  Oregon sought to enact such a measure in the 1920’s, when many citizens felt anxious that Catholic schools were somehow shielding their students from American ideals.  The Court, in Pierce v. Society of Sisters, invalidated that measure and memorably explained: “The child is not the mere creature of the state.”  That decision was, in my assessment, absolutely correct.    

Q: Given the coming five-person hard right majority in the Supreme Court, which precedents in the education areas are most likely to be overruled or severely limited?  Is there any area where improvement might come, or is that unrealistic until the Court members change?

A: Two constitutional areas in the domain of public schools immediately spring to mind where the Court could quite conceivably move to the right in the wake of Justice Kennedy’s departure from the Court.  Those matters involve the ability of unauthorized immigrants to receive an education, and the permissibility of race-conscious admissions policies. 

In 1982, Plyler v. Doe invalidated a Texas statute that authorized local school boards to exclude unauthorized immigrants. At that time, a young attorney working in the Reagan Department of Justice named John Roberts coauthored a memorandum suggesting that Plyler v. Doe was wrongly decided.  If Chief Justice Roberts continues to believe the Court erred in Plyler v. Doe, that opinion could be reversed.  

In 2007, as mentioned above, the Court invalidated voluntary-integration programs if they used racial classifications.  Importantly, though, Justice Kennedy authored what lower courts have accepted as the controlling opinion in Parents Involved.  Kennedy’s concurring opinion quite pointedly indicated that school districts need not be colorblind when, inter alia, they make determinations about how to draw school attendance boundaries and where to build new schools.

It is quite conceivable that Kennedy’s replacement* will take a more hardline approach in this area, which would have significant implications not only for elementary and secondary schools, but also for affirmative action programs in higher education.

Nevertheless, I believe that it is eminently possible to form judicial coalitions that would bring about some badly-needed improvements regarding constitutional doctrine in the nation’s public schools.  A coalition that joined liberals and the libertarian-inflected vision of constitutional law that is ascendant in some right-leaning circles could issue decisions in three vital areas: student speech under the First Amendment; student privacy under the Fourth Amendment; and student freedom from corporal punishment under the Eighth Amendment.  Liberals should be receptive to such claims, and libertarian-minded justices – who are characterized by a skepticism of state authority – should be able to find common cause in those pressing areas.       

Q: Don’t we at least have to consider the idea that whole categories of Supreme Court education precedent - say, Pierce and its progeny on the rights of religious and ethnic minorities to educate in ways meaningful to them, Tinker (on the rights to symbolic protest), Brown vs. Board, the school prayer cases, to name a few -- are just dead in a hard-right Supreme Court?  Or do they live to be built upon 20 or 50 or more years in the future, assuming there is a Supreme Court in the traditional sense at that time?

A: One of the major themes in The Schoolhouse Gate is the extreme contingency of constitutional law in this domain.  In the late-1960s, Professor Philip Kurland woefully predicted that it was only a matter of time before the Supreme Court invalidated the method by which public schools in most of the country were funded.  Kurland was far from alone in making this forecast.  But in 1973, the Supreme Court in San Antonio Independent School District v. Rodriguez, in a 5-4 decision, rejected that claim. 

All four of President Nixon’s appointees to the Court joined the majority opinion.  Had that school financing challenge arrived at the Court only a couple of years later, though, it seems plausible that Justice Harry Blackmun, who shifted leftward over time, would have vindicated such a claim, and thus altered the outcome on a major question of constitutional law.  This lesson of constitutional indeterminacy, of course, extends well beyond the realm of school financing.   

While nothing is certain, of course, I would be extremely surprised if any of the three cases you identify were formally overturned in the next five decades.  Pierce v. Society of Sisters invalidated requirements that students must be educated in public schools.  Tinker granted students free speech rights.  While subsequent Court decisions have found exceptions to Tinker’s general rule, it would be inaccurate to conclude that Tinker has been drained of all vitality.

While I found Chief Justice Roberts’s understanding of Brown anemic and racial isolation persists in far too many American schools, it is important to appreciate that Brown’s rejection of official state-sanctioned Jim Crow schools is in no danger. 

Finally, it is essential to understand that even if the Supreme Court of the United States refuses to honor students’ constitutional rights in the way that many of us would wish, that is not necessarily the end of the matter.  The Supreme Court is responsible for articulating a constitutional floor, below which school districts may not sink.  But nothing prevents school boards, state legislatures, and state supreme courts from providing greater levels of protection to students than the federal judiciary has recognized. 

This dynamic has repeatedly occurred in this area.  For example, in response to Rodriguez, several state supreme courts interpreted their state constitutions to invalidate their methods of schools financing.  Similarly, in response to a U.S. Supreme Court decision that many believed offered insufficient protections to student journalists, several states enacted laws that afforded them greater rights.  Regardless of the U.S. Supreme Court’s future then, I retain genuine optimism about the future of students’ rights. 

 *This interview preceded the confirmation of Brett Kavanagh to the Supreme Court.