School, says Justin Driver, is largely a Constitution-free zone. In The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind, the University of Chicago law professor casts a critical eye on the Supreme Court’s decisions—and its inaction—on issues governing public schools. Driver argues that the court, with opinions giving educators the right to inflict corporal punishment, search children without probable cause, and suppress student speech solely for objectionable viewpoints, has abandoned its fundamental responsibility to safeguard students’ constitutional protections. What’s more, says Driver, lower courts—following the high court’s lead—have upheld an array of questionable school actions involving dress codes, off-campus speech, and zero-tolerance policies that suspend, expel, and criminalize children for minor infractions.
I recently spoke to Driver about what the newest Supreme Court justice could mean for constitutional freedoms in public schools and the multiple ways that the court has eroded students’ rights in recent decades. Our conversation has been edited and condensed for clarity.
Melinda D. Anderson: What’s your crystal ball prediction—will the pendulum swing toward protecting public school students’ constitutional rights in coming years, or will schools come under the autonomous control of principals and school boards?
Justin Driver: Many people might think the current Supreme Court would be unreceptive to students’ claims. I have some hope, however, that the constitutional doctrine will move in a beneficial way in future years. It’s possible to have a coalition joining liberals and the Libertarian-inflected vision of constitutional law that is dominant in some right-leaning circles. If you’re a Libertarian, you have a certain skepticism of state authority. So the First Amendment and free speech, along with the Fourth Amendment forbidding unreasonable searches, are examples that spring to mind where this coalition might be possible and lead to reform.
Are there issues where Justice Brett Kavanaugh’s replacement of Justice Anthony Kennedy could mean major shifts in the landscape? One that immediately comes to mind, now winding its way to the Supreme Court, is transgender students’ bathroom access.
Yes, Kennedy’s departure may well yield a different result. He never wrote an opinion dealing squarely with transgender people. But the ruling on marriage equality was a 5–4 decision that Kennedy wrote. We don’t know what Kavanaugh believes in this area, but recent GOP-appointed justices have all said that there is no right under the Constitution to same-sex marriage. Extending that logic to transgender students, they may find an unreceptive body at the Supreme Court.
Kavanaugh could also make a difference in access to school for undocumented immigrants. I could imagine states now attempting to pass legislation designed to have the Supreme Court revisit Plyler v. Doe [a 1982 decision guaranteeing a public education to undocumented children]. And if Chief Justice John Roberts continues to hold the view that he espoused in 1982—suggesting that Plyler was incorrectly decided—he could lead the court to reverse that decision.
What’s the most striking example today of how the court has allowed schools to infringe on students’ rights?
The court has been quite lax in its enforcement of the First Amendment in the area of student speech. Tinker v. Des Moines Independent Community School District [a 1969 case in which the Supreme Court ruled that students at school retain their First Amendment right to free expression] represented a huge breakthrough. But the Tinker rule says if educators have a reasonable forecast that a substantial disruption will flow from particular speech, then it’s permissible to silence or to punish students for that speech.
In California, students wearing the American flag were told to turn their shirts inside out. This was on May 5, 2010—Cinco de Mayo—and Mexican American classmates confronted them. To diffuse the conflict, school officials told the students to remove the American-flag clothing or go home. I understand the frustration that Mexican American students felt. Yet this is a classic heckler’s veto. That is, particularly sensitive listeners can, if they object vociferously enough, silence otherwise legitimate speech.
In another lawsuit, a student was pulled from class for wearing a shirt with “Homosexuality is shameful” and “Be ashamed” to protest his high school’s day of silence, intended to promote gay equality and draw attention to the violence that is often visited upon sexual minorities. I personally detest that message, but I think that he should have been able to wear that shirt to school.
What if student expression clashes with schools creating a safe and welcoming learning space? That’s such an ugly, anti-gay message. We now have white students quoting President Donald Trump to bully and harass classmates based on their race and ethnicity. Is that deserving of free speech protection?
Well, there are particular aspects of public schools that distinguish them, let’s say, from public parks for freedom of speech. One of the most important is that students are a captive audience, and unable to simply disengage and walk away from people if they’re sitting right behind the student in a T-shirt. One of the arguments I advance is that there should be a beefed-up fighting-words doctrine in schools. So I try to be sensitive to this dynamic that you’ve identified. One of the other things is that school administrators can draw some pretty curious connections. For example, some schools say you can’t wear clothing featuring the Confederate flag, and you can’t wear its opposite, which is Malcolm X attire. It’s far from clear to me that the opposite of a Confederate flag is a Malcolm X hat.
Along with student speech, what else tops your list of areas the court has botched or neglected?
The court has fallen down in its responsibility on the Fourth Amendment, relating to student searches and seizures. The cases that I think are the most wrongly decided involve students being required to take a drug test and offer a urine sample simply for participating in extracurricular activities. In most contexts, we would regard this as a dragnet search and almost certainly impermissible because the government doesn’t suspect any individual of wrongdoing. The court has validated these practices, and I find them quite disturbing.
I feel the strongest about corporal punishment, though. I write about it throughout the book—because of the sheer number of students affected, and because it strikes me as a clear excess of the state exercising dominion over individual students. I think that hitting children with wooden paddles is a violation of the Eighth Amendment’s “cruel and unusual punishment” clause. Nineteen states have corporal punishment. It’s also worth noting that a disproportionate percentage of students who receive corporal punishment are black and other students of color. The facts of the case that the court heard in the 1970s were truly egregious. And even still, this practice continues today.
By Justin Driver. Pantheon.
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