"The Schoolhouse Gate": The Constitution Goes to School

The Supreme Court is not omnipotent, but neither is it impotent, as its constitutional decisions from public schools helpfully illuminate.

|The Volokh Conspiracy |

Last week, Pantheon published my new book, "The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind." The volume examines the intersection of two distinctively American institutions: the Supreme Court and the public school. In this first of five items that I will post this week, I begin by explaining how my book challenges the received wisdom among legal academics about the Supreme Court's role in American society. Unlike many law professors today, I claim that the Supreme Court has demonstrated an underappreciated capacity for shaping the nation—a dynamic that comes into sharp focus when examining constitutional law through the prism of public schools.

To claim that the Supreme Court has meaningfully advanced the causes of constitutional liberty and constitutional equality in public schools would once have been wholly unremarkable. Such a claim would simply apply to the discrete field of education law what constitutional scholars assumed was accurate as a general proposition. During an earlier era, legal academics frequently asserted—without marshaling any real evidence—that the Court had transformed the nation on a wide array of topics by extending constitutional protection to disfavored groups and causes.

More recently, however, several distinguished scholars have challenged that assessment, contending that the Court was hardly the mighty institution that older professors maintained as an article of faith. Upon examination, these revisionist scholars insist, the Court's salient decisions almost invariably ratified (rather than resisted) public opinion, and should be viewed as the reflection of national consensus or the anticipation of an emerging national consensus. This revisionist band of scholars observed that the Court's decisions invalidating measures often did not challenge the legislative landscape across the country, as the prior generation had believed, but instead typically tackled practices found in a handful of states—which they labeled "outliers." While this revisionism might have begun as a relatively small intellectual movement, its views have now become dominant within legal academia, and gained purchase in popular circles as well.

But scrutinizing the broad jurisprudence involving students' constitutional rights complicates this revisionist school's unduly frail conception of the judicial capacity for shaping American society. Indeed, if constitutional professors from earlier times were wrong to believe that the institution could achieve almost anything, today's revisionist legal scholars are incorrect to suggest that it can accomplish virtually nothing.

Consider some of the Court's many momentous interventions in this area that offer meaningful complications to the prevailing conception. In some instances, the available polling data and other contemporaneous indicators reveal that the Court's opinions vindicating those interests ran counter to the preferences of national majorities. This dynamic occurred when the Court upheld students' free speech rights in the 1960s and afforded students due process rights before they could be suspended or expelled during the 1970s.

Relatedly, in other instances, the Court's decisions invalidated practices found throughout the country, not merely those concentrated in isolated pockets. This dynamic transpired when the Court rejected statutes that prohibited teaching in languages other than English during the 1920s and requirements to salute the American flag in the 1940s. Thus, far from imposing the consensus values of the American people and invalidating outliers, it often seems more accurate to view the Court's decisions vindicating students' constitutional rights as overcoming popular sentiment.

Even if the Court strikes down practices found in only a small number of states, moreover, it is severely mistaken to construe those judicial invalidations as representing insignificant acts in shaping our constitutional order. Thus, for example, when the Court invalidated Oregon's measure requiring all students to attend public school in the 1920s, or when it struck down Kentucky's requirement that classrooms display the Ten Commandments during the 1980s, or when it nullified Texas's measure excluding unauthorized immigrants from attending public school in that same decade, those statutes were the only ones of their kind in the nation. Yet contemporaneous evidence in all three instances suggests that the Court's actions extinguished those flickering statutory sparks before they could become a genuine blaze, as—if left unchecked—other states would have sought to enact similar policies, potentially causing substantial harm to the nation's constitutional values.

Two of the Supreme Court's most prominent interventions in history—its invalidation of racially segregated schools and its invalidation of teacher-led prayers—also succeed in complicating the revisionists' general conception. Contrary to those accounts, Brown v. Board of Education cannot convincingly be construed primarily as either the ratification of an emerging national consensus on racial equality or the invalidation of outlier legislation.

Instead, the best available evidence indicates that racial attitudes—even in the supposedly enlightened North—were a good deal more ambivalent and conflicted than revisionist scholars typically allow. In addition, while some revisionists correctly concede that the Court's opinions banning teacher-led prayers in public schools encountered major opposition during the 1960s, they then quickly proceed to alternate ground, noting that those decisions were routinely flouted, most often in the South. Yet fixating on the Court's failure to achieve universal and immediate adherence to those decisions has succeeded in obscuring the extent to which they earned widespread adherence immediately, and nearly universal implementation over time.

In order to avoid misunderstanding, allow me to emphasize that I in no way seek to restore the older conception of an almighty Supreme Court. To the contrary, revisionists made a valuable contribution by critiquing and dislodging that flawed conception of the Court as colossus.

But the revisionist effort has yielded an overcorrection in the opposite direction. Whereas scholars previously erred by portraying the judiciary as omnipotent, revisionists today err by depicting it as impotent. A clear-eyed view demonstrates that the Supreme Court is neither a Leviathan striding the earth nor a Lilliputian standing in place. Instead, upon close inspection, it seems most accurate to contend that the institution has taken several significant steps on the path toward fully recognizing students' constitutional rights.

NEXT: People Without Nations, Nations Without People

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. I think the main reason that the SCOTUS did not impact America much until the 1930s was that it mainly struck down unconstitutional laws and there were less laws in the first place.

    Everything changed when the SCOTUS backed down to Roosevelt’s threat to pack the Court and get what he wanted to be safe from the Court striking the laws down as unconstitutional. Massive Socialist programs were allowed to remain on the law books. Court packing was actually unpopular with Americans but the SCOTUS was too chicken to stand up to FDR.

    Then the SCOTUS under Warren decided to use the court to bring about great change by allowing the federal and state governments to explode in size and tasks. Warren began the trend of using the Court to allow unconstitutional government expansion. Earl Warren also directly assisted in the Japanese-American internment, eugenics, forced-sterilizations, and ethnic cleansing policies he enacted as California Attorney General.

    1. Sounds more like you don’t like modernity more than the Court, really.

      If you think being for eugenics disqualifies you in high office, I have some very bad news about our Founding generation and slavery…

  2. “Contrary to those accounts, Brown v. Board of Education cannot convincingly be construed primarily as either the ratification of an emerging national consensus on racial equality or the invalidation of outlier legislation.”

    I think this is a little bit of an overstatement. Elite opinion in the U.S., outside the South, of course, was definitely shifting to the view that, given the position of the U.S. as the leader of the “free world”, government enforced segregation was no longer acceptable. Outgoing Secretary of State Dean Acheson filed a brief with the Court opposing segregation. Acheson was quite close to Frankfurter as well and one can suspect that he encouraged the Court to come to the “right” decision.

    Within the South, South Carolina Governor James Byrnes, who had been secretary of state himself, was striving to “Court proof” his state by pouring money into the segregated schools for blacks. The vast majority of southerners, of course, were not “ready” for integration, and the Court’s ruling pushed the South far to the right. The governor of Alabama at the time, “Kissin’ Jim” Folsom, actually said he see why black and white kids couldn’t go to school together. Of course, Kissin’ Jim quickly gave way to Fightin’ George.

    1. “Elite opinion in the U.S.”

      The key. The Supreme Court follows the opinions of the so called “elite”, both the cultural and legal variety. Not perfectly or always but often.

      The gay marriage case is the classic example outside of education.

      1. Looking at the history of the Court, that elitist check seems to have been intended from the start, even before judicial review became a thing.

    2. Relatedly, note that both the Southern Baptist Convention and the Presbyterian Church in the United States (the Southern Presbyterian Church) endorsed desegregation in 1954. Further proof that elite opinion was definitely in that corner.

      1. the Southern Baptist Convention and the Presbyterian Church in the United States (the Southern Presbyterian Church) endorsed desegregation in 1954.

        I didn’t know that.

        They sure didn’t do much about desegregating their own churches.

  3. At any rate, public education, at least through high school, has become mostly a train wreck . . . parents (without regard to race, color, or creed) who have money do not opt for public schools, and yes there are a few exceptions.

  4. “Court’s opinions banning teacher-led prayers in public schools encountered major opposition during the 1960s”

    The opposition came from conservative politicians and ordinary people.

    Not Harvard and Yale Law faculties and the New York Times which is the only views the Warren Court cared about.

  5. Leviathan was a giant sea creature that swam (and thus would not stride the land) the waters of chaos, above which Yahweh cruised in his G6. In precursor stories to Genesis, he defeats it (still mentioned in Psalms) and splits it in half, the upper half holding back the waters from above and the lower half from below. We live in a cyst in the waters of chaos. Hence the great flood wasn’t just opening windows above but breaking up the fonts below, allowing water to rise up as well.

    Anyway, perhaps Behemoth or some kind of Goliath or juggernaut or Titan or Colossus might be a better choice.

    1. Leviathan was a giant sea creature that swam (and thus would not stride the land)

      Upvote.

  6. The South’s schools were not integrated a full 10 years after Brown, and it only occurred when LBJ gave federal tax dollars to those that did. I would not use, ever, Brown as an example of a dynamic court able to make significant social change on its own.

    1. Would you say necessary but not sufficient?

      1. Do you think the unanimity of the opinion had any effect on the public?

        1. I think the unanimity of the opinion helped the court maintain its institutional legitimacy, but it is hard to say what the public thought about it without finding some opinion polling from the time, which I doubt was done. Maybe some anecdotes from newspapers, that’s about it. The civil rights movement itself, though, saw Brown as just one piece of a large plan. Many opposed to the decision immediately subscribed to the Southern Manifesto, which says that the authority to interpret the Constitution does not just reside in the Supreme Court, an idea built off of the Kentucky and Virginia nullification debate in the early 1800s.

          Courts are neither necessary, nor sufficient, for significant social change to occur. Significant social change comes with or without courts. The Court is always the sidecar to the public opinion motorcycle. To the OP’s point, they are important at the margins, and can have secondary effects that change the playing field. The only exception to the necessity for widespread support is if the Supreme Court is ordering lower courts to do something (like Miranda) and (kinda) if they get the free market to implement their decisions for them, like Roe.

Please to post comments

Comments are closed.