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Mostly law professors, blogging on whatever we please since 2002 · Hosted by The Washington Post, 2014-2017 · Hosted by Reason 2017 · Sometimes contrarian · Often libertarian · Always independent

"The Schoolhouse Gate" as a Site of Constitutional Law

An important new book by my colleague Justin Driver, which should be of interest of all who follow constitutional law

A funny thing happens to constitutional law cases when they are taught in law schools. As a consequence of the structure of the law school curriculum, the cases get sorted and boxed up into certain standard packages -- the separation of powers cases, the federalism cases, the free speech cases, the race/equal protection cases, and generally taught in a course or unit with that focus. (Don't even get me started on the criminal procedure cases, which get taught in their own specialized courses and then start feuds about whether criminal procedure is really just a subfield of constitutional law or not.) Of course there are a lot of good reasons for this approach, and as the co-author of a constitutional law casebook, there is a limit to how much I can rightly complain about this.

But some important things can get lost in this slicing and dicing. There are certain important topics and institutions that come up in constitutional law repeatedly, but that usually get no specific constitutional law course of their own. (Yes, there are courses on family law or education law, for instance, but usually not specifically focused on constitutional family law or constitutional education law.) If you read enough constitutional law cases, you may find yourself wondering -- what would happen if we thought about constitutional law from that institution's point of view, rather than following the standard law school organization?

Now I know. Enter The Schoolhouse Gate: Public Education, The Supreme Court, and the Battle for the American Mind, an important and delightfully crafted book by my colleague and friend Justin Driver. The Schoolhouse Gate systematically considers the constitutional law of American public schools, arguing that the Supreme Court deserves a great deal of credit for bringing civil rights such as free speech and racial equality to schoolchildren, and a great deal of criticism for its more recent cases beating a retreat. (This New York Times essay provides a great introduction to the themes of the book.)

To do this, it brings together aspects of constitutional law that might otherwise be broken up through The First Amendment (the free speech rights of schoolchildren), antidiscrimination and equal protection (race discrimination in schools), criminal procedure (the privacy rights of schoolchildren), and some cases that would simply fall through the cracks. Once Driver has put them all together for us, it becomes easier to see that these are really cases about schools, not just about the artificial doctrinal boxes.

Finally, another noteworthy thing about the book is this: While The Schoolhouse Gate has a lot of tough criticism for the Supreme Court's recent jurisprudence, it is ultimately an optimistic one. It sees the Supreme Court's efforts to reshape a major American institution as basically healthy, and basically successful. You don't read many law professors making that kind of argument these days, but maybe that is because they weren't looking in the right place.

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  • QuantumBoxCat||

    Why exactly is there is need for a Constitutional Law Casebook when all of the U.S. Reports are freely accessible online? Instead of having a textbook that tells the students how the cases are (ought to be) connected, based on the reasoning and arguments of the textbook author, why not just assign a collection of cases that the professor believes are related and then ask the students to analyze and synthesize, possibly putting them back together in a way that hadn't been thought of before? A well prepared syllabus can direct students to additional primary sources, including contemporaneous debates over meaning and interpretation at the time a case was decided.

    In short, why not help guide students through the process of discovering their own analytic abilities, rather then use a textbook where the authors have already done the creative analyses as they see fit? Also, the cases are literally free.

  • MonitorsMost||

    Morse vs Frederick remains one of worst First Amendment decisions in recent history. Harper v Ponway School District out of the Ninth Circuit is even worse, holding that schools can engage in viewpoint discrimination to suppress unpopular opinions outside the classroom.

    Interesting to see his citiations to 4th Amendment and corporal punishment in the school. Not immediately where I expected the topic to go.

    Crim pro at my law school was exclusively 4th, 5th, 6th Amendment Con Law.

  • Alan Vanneman||

    "Finally, another noteworthy thing about the book is this: While The Schoolhouse Gate has a lot of tough criticism for the Supreme Court's recent jurisprudence, it is ultimately an optimistic one. It sees the Supreme Court's efforts to reshape a major American institution as basically healthy, and basically successful."

    Gee, that's not the way Dr. Driver's article for the Times reads. After giving the Court "a great deal of credit for bringing civil rights such as free speech and racial equality to schoolchildren," as you say, Dr. Driver goes on to say "Over the past few decades, regrettably, such sentiments on the Supreme Court have appeared more often in dissenting opinions than in majority opinions, as the court has distorted the Constitution's meaning in public schools." That wouldn't have anything to do with people like Rehnquist, and Scalia, and Thomas showing up on the bench, would it?

  • ||

    If the court really wanted to do schoolchildren a favor, it would recognize compulsion-based schooling as "involuntary servitude" and therefore proscribed by the Thirteenth Amendment. It's really no exaggeration to call children the slaves of their elders. Youth rights now!

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