Prof. Justin Driver (U Chicago) Guest-Blogging About The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind


I'm delighted to report that Prof. Justin Driver of the University of Chicago Law School will be guest-blogging this week about his new book, The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind. Here is an excerpt from the publisher's summary:

Judicial decisions assessing the constitutional rights of students in the nation's public schools have consistently generated bitter controversy. From racial segregation to un­authorized immigration, from antiwar protests to compul­sory flag salutes, from economic inequality to teacher-led prayer—these are but a few of the cultural anxieties dividing American society that the Supreme Court has addressed in elementary and secondary schools. The Schoolhouse Gate gives a fresh, lucid, and provocative account of the historic legal battles waged over education and illuminates contemporary disputes that continue to fracture the nation.

Justin Driver maintains that since the 1970s the Supreme Court has regularly abdicated its responsibility for protecting students' constitutional rights and risked trans­forming public schools into Constitution-free zones. Students deriving lessons about citizenship from the Court's decisions in recent decades would conclude that the following actions taken by educators pass constitutional muster: inflicting severe corporal punishment on students without any proce­dural protections, searching students and their possessions without probable cause in bids to uncover violations of school rules, random drug testing of students who are not suspected of wrongdoing, and suppressing student speech for the view­point it espouses. Taking their cue from such decisions, lower courts have upheld a wide array of dubious school actions, including degrading strip searches, repressive dress codes, draconian "zero tolerance" disciplinary policies, and severe restrictions on off-campus speech.

And two blurbs, one from the left and one from the right:

"Justin Driver's extraordinary book, The Schoolhouse Gate, deeply probes the many ways in which our constitutional law, as interpreted by America's judges, shapes the crucial world of public education—but fails the students for whom that education exists. No one who cares about our nation's children and thus our country's future can afford not to read this riveting work."
—Laurence Tribe, Harvard Law School, author of Uncertain Justice: The Roberts Court and the Constitution

"What a wonderful, engaging, provocative book! Justin Driver contends that federal courts have an essential role to play in expanding the constitutional rights of public school students. Even readers who disagree with some of the book's conclusions—like myself—and believe that school decisions should instead be left largely to school boards, superintendents, principals, teachers, and parents will be forced to grapple with the powerful historical and legal arguments advanced in this impressive volume."
—Judge J. Harvie Wilkinson III, U.S. Court of Appeals for the Fourth Circuit, author of From Brown to Bakke

NEXT: Racism Coming and Going: The Cases of Sen. Tom Watson and Gov. George Wallace

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  1. Think how many of these problems could be avoided without government schools, or if more parents had real choices about which government schools their students attended.

    1. Should have said more than just the normal rant. I am looking forward to this series, to see if it will change my mind, and to see if there are aspects to it I haven’t thought of before. It’s been a long long time since I was in a public school even as a visitor.

  2. I was never in public school (unless you count Boalt). We sent our daughter to private school, as our parents had sent us, and we would certainly not have thought that the federal judiciary could play a productive role in her education. Last I checked, school boards are elected, depend on parental assistance and parental willingness to approve property tax rates, and are usually fairly responsive to parental concerns. So this doesn’t seem like an area where normal democratic governance, free of judicial intervention, would fail to function appropriately.

  3. There’s a difference between the Court “neglecting its duties,” on the one hand, and making decisions one doesn’t like, on the other.

    The Supreme Court has held schools stand at least partially in loco parents and therefore many hands-off rules that apply to adults don’t apply to them.

    This would be like saying the court has neglected the constitution on the subject of abortion or immigration because it has decided certain constitutional rights don’t apply to fetuses or foreigners. This is similar.

    Constitutional personhood is not a binary, full personhood or piece of meat. There are many categories that are in between. This is yet another example.

  4. Judges in our day force communities and states to spend X billion dollars more than they have allotted through their legislatures, then force the legislatures to increase taxes by Y amounts.

    How is this money spent? Mainly for the exquisite care and funding of teacher unions, which kick back huge amounts of funding to political campaigns. Many taxpayers are extremely unhappy about that, because the money they are being over-taxed to lavishly fund education thus ALSO goes to advocate for many, many other left wing causes.

    I said “lavish” regards funding, because we do have schools that splurge on architecture and most teachers in my state are now making$75 K for nine months work with many clearing $90K.

    Learning, however, doesn’t depend on any of that. Learning depends on curriculum and standards, and there we really enter Ground Zero of the culture wars. As conservatives see it, left wingers in government, academia, and the courts, are taking 100% of the taxpayer dollar and telling one and only one version of every story, plus mountains of incorrect facts taught as truisms and a universe of relevant actual facts covered up, ignored, stonewalled.

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