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Ask the author: Our Constitution says we must take this risk

The following is a series of questions prompted by the publication of Justin Driver’s “The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind” (Pantheon Books, 2018). As Driver observes, “cultural anxieties that pervade the larger society often flash where law and education converge.” And indeed, decisions arising from schools – in which the Supreme Court has both spurred and forestalled social changes – have involved free speech, due process, criminal procedure, racial and sex equality, and religion.

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Welcome, Justin, and thank you for taking the time to participate in this question-and-answer exchange for our readers.

Question: Before getting into specific cases and controversies, can you give an overview of the book?

Driver: The book examines the intersection of two distinctively American institutions: the public school and the Supreme Court. For a long season, many observers believed that these two institutions should have nothing to do with each other. But a panoramic view of this terrain now establishes that, without exploring the extensive interaction of the public school and the Supreme Court, it is impossible to grasp the full meaning of either quintessentially American institution. At its core, the book argues that the public school has served as the single most significant site of constitutional interpretation within the nation’s history. In the course of defending that claim, I challenge received wisdom on prominent cases and attempt to elevate relatively obscure cases into our constitutional canon. The book also highlights the many personal ordeals that students and their families have endured while defending constitutional rights. Although the book trains its focus principally on students’ constitutional rights, my examination of this particular field also aims to upend broader conceptions of the Supreme Court’s role in American society. Most broadly, I argue that when we disagree over what the Constitution means in public schools, we engage in an argument that is fundamentally about what sort of nation we want the United States to be.

Question: You write of Justice John Marshall Harlan’s famous solo dissent in Plessy v. Ferguson, the 1896 decision that upheld the constitutionality of Louisiana’s segregated railcars, that “the deeply flawed, repugnant reasoning contained in that opinion renders it the single most overrated opinion ever written by a Supreme Court justice and—not incidentally—the most misunderstood.”

During Justice Brett Kavanaugh’s confirmation hearing, Harlan’s dissent was praised as an example of judicial independence in the face of popular opinion. Can you clarify why it’s “overrated”?

Driver: Harlan’s Plessy dissent claims so many admirers in the modern era largely because people cite an isolated fragment from the opinion. Read in its entirety, though, it espouses unabashedly white supremacist and anti-Asian attitudes. In one breathtaking passage, Harlan wrote that, even if railcars were racially integrated, such a development would in no way jeopardize the superior status of whites. “The white race deems itself to be the dominant race in this country,” he contended. “And so it is, in prestige, in achievements, in education, in wealth, and in power.” Further, Harlan emphasized what he deemed the Louisiana statute’s fundamental absurdity: It excluded black passengers from white railcars when “a Chinaman can ride in the same passenger coach with white citizens,” even though members of “the Chinese race” are “so different from our own that we do not permit those belonging to it to become citizens of the United States.” Although Harlan famously wrote that “[i]n respect of civil rights, all citizens are equal before the law,” contemporaneous readers would have understood that “civil rights” had a limited meaning and was distinct from “social rights.” Whereas “civil rights” connoted the ability to enter valid contracts and similar concepts, “social rights” connoted interracial sex and all other forms of interracial interactions that might lead to such contact. Harlan dissented in Plessy because he viewed integrated railcars as involving civil rights, rather than social rights — not because of some prophetic commitment to racial equality. Harlan’s tepid commitment to challenging racism can be gleaned from his unanimous opinion for the Supreme Court in Cumming v. Richmond County Board of Education, a case that was decided only three years after Plessy. In Cumming, Harlan upheld a school board’s decision to close the area’s public high school for black students but keep open the high school for white students. These underappreciated aspects of Harlan’s legacy reveal he was hardly the avatar of modern racial attitudes that some colorblind constitutionalists claim him to be.

Question: At the confirmation hearing, senators on both sides seemed to agree with Kavanaugh’s praise of Brown v. Board of Education, which declared that racially segregated schools violated the 14th Amendment’s equal protection clause, as “the greatest moment in Supreme Court history.”

This drew my attention to your claim that “Brown receives near-universal veneration today in no small part because different readers ascribe radically different meanings to the decision.” Can you elaborate?

Driver: While every justice on the current Supreme Court doubtless pledges allegiance to Brown, they simultaneously turn to salute in competing directions. These divergent interpretations of Brown have repeatedly created controversy since its inception, most recently in the 2007 clash in Parents Involved in Community Schools v. Seattle School District No. 1. After Brown, questions lingered regarding what the opinion required of educators. Did it merely eliminate state laws that either mandated or permitted school segregation? Or did it also require states to take affirmative steps to guarantee school integration? What applicability, if any, did Brown have on education in the North — where laws requiring school segregation had at least officially been abandoned before Brown but schools nonetheless remained racially identifiable? Although many white southerners initially contended that the Supreme Court had erred in Brown, once it became apparent that the court would not reverse course, the decision’s opponents effectively aimed to minimize desegregation and convert the opinion into a principle requiring constitutional colorblindness. These strategies eventually attained considerable success not least because the court, after issuing Brown in 1954, abandoned efforts to develop a meaningful desegregation jurisprudence for roughly 15 years.

Question: You write that approbation of Brown’s unanimity “appears to rest on a severely exaggerated understanding of the Supreme Court’s ability to stifle opponents by speaking with one voice.” Can you explain? Isn’t unanimity better than division for the perceived legitimacy of the court?

Driver: Many observers have asserted that the Supreme Court’s unanimity was essential in Brown because a dissenting opinion would have stoked southern opposition. As subsequent events would demonstrate, however, southerners did not need any encouragement from the Supreme Court to resist Brown in a maximal form. In 1956, for example, 19 U.S. senators and approximately 80 congressmen joined forces to issue a document called the Southern Manifesto denouncing Brown as wrongly decided. Anti-Brown forces eventually coalesced around a rallying cry holding that they would accept racial integration exactly “never!” Importantly, it seems quite plausible that Chief Justice Earl Warren, had he not felt compelled to placate Justice Stanley Reed — the last holdout for Jim Crow — could have written a more muscular opinion in Brown. Whatever modest gain Warren realized from Brown’s unanimity in the form of squelched dissent, in other words, could have been counterbalanced — and perhaps even outweighed — by the attendant loss of watering down the opinion’s condemnation of Jim Crow. Thus, rather than continuing to champion Warren’s behind-the-scenes maneuvering in Brown uncritically, one might more appropriately view those actions as well-intentioned but ultimately misguided.

Question: Your title (like mine) comes from the Supreme Court’s 1968 opinion in Tinker v. Des Moines Independent Community School District. There Justice Abe Fortas wrote, “It can hardly be argued that … students … shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

You suggest that this phrase “not only became a staple of judicial opinions but even entered the larger national culture.” What’s the importance of this phrase, which comes from what you describe as “the Supreme Court’s most consequential student rights opinion in its entire history”?

Driver: If Tinker were memorable only for containing that sentence, the opinion would nevertheless rank high on the list of the Supreme Court’s momentous defenses of students’ constitutional rights. But Tinker also held great significance beyond that lone sentence. By linking the opinion to a broad notion of citizenship, Fortas emphasized that it would be particularly unwise for a society that values uninhibited public debate to permit schools to suppress views, as today’s students will soon assume responsibility for maintaining tomorrow’s civic discourse. Some of the most essential learning that occurs in schools happens not only during teacher-led classroom instruction, but during “personal intercommunication among the students,” interactions that Fortas affirmed as embodying “an inevitable … [and] an important part of the educational process.” Some observers have perceived Tinker’s outcome as foreordained. But from the viewpoint of the 1960s, it seemed quite plausible that the Supreme Court could have reached precisely the opposite outcome. Fortas himself viewed the matter as thorny: When Tinker initially arrived at the court, Fortas wrote, “this is a tough case” on a law clerk memorandum outlining the students’ petition for certiorari. Fortas eventually voted to deny the students’ petition, a stance that (if not overcome by his colleagues) would have permitted the school officials’ suppression of student speech to remain intact after their victory at the circuit-court level. Even at oral argument, Fortas’ comments to the students’ lawyer revealed at least some unease at the prospect of holding that the Des Moines educators’ actions violated the Constitution: “This gets the Supreme Court of the United States pretty deep in the trenches of ordinary day to day [school] discipline.” Nevertheless, Tinker represented a major innovation in the recognition of students’ constitutional rights, and its resonant language established the fundamental terms of debate when the Supreme Court weighed the meaning of various constitutional rights in the nation’s public schools.

Question: What was Justice Ruth Bader Ginsburg’s role in Safford Unified School District v. Redding, a 2009 case that, you write, “undeniably marked a crucial moment in this arena of student rights, as it represented the first—and to date the only—time that the Supreme Court has held that school officials violated the Fourth Amendment’s prohibition on unreasonable searches”?

Driver: During oral argument in Redding, in which the court considered the constitutionality of a strip search of an eighth-grade girl, some courtroom observers noted that Ginsburg appeared on the verge of exasperation with her colleagues — all males at the time — because their questioning seemed to betray a failure to grasp the search’s humiliating effect. Two weeks later, Ginsburg atypically made on-the-record statements to a reporter about the pending case. “They have never been a 13-year-old girl,” Ginsburg said of her fellow justices. “It’s a very sensitive age for a girl. I didn’t think that my colleagues, some of them, quite understood.” After the court issued an 8-1 decision invalidating the search, several commentators credited Ginsburg’s comments with helping to transform the case’s outcome. Immediately on the decision’s heels, when an interviewer asked Ginsburg whether the court’s deliberations in Redding benefited from having a woman present, she answered in the affirmative, largely reiterating her previous comments. “I think [the inclusion of a woman] makes people stop and think, Maybe a 13-year-old girl is different from a 13-year-old boy in terms of how humiliating it is to be seen undressed,” Ginsburg said.

Ginsburg’s repeated references to Savana Redding’s tender emotional state — which Ginsburg construed as a dual product of age and sex — doubtless exert a formidable grip on the instincts and perhaps even the emotions of many readers. On this view, 13-year-old boys — unlike their female counterparts — are simply not sensitive about their bodies, or much of anything else for that matter. But consider for a moment what work is done, precisely, by emphasizing that the strip search occurred when Redding was 13 — an age that, as Ginsburg correctly noted, often falls right around the onset of puberty. That age is surely a particularly awkward time for many adolescents, but does it materially alter the Fourth Amendment analysis in any way? Furthermore, Ginsburg’s position that strip searches are uniquely objectionable to female students also demands scrutiny. Very few male students, it seems safe to posit, would be indifferent to the experience of school officials requiring them to disrobe in a search for contraband. Boys, perhaps now more than ever, are hardly impervious to feeling inadequate about their physiques. When Ginsburg was a pioneering attorney in the legal fight against sex discrimination during the 1970s, she admirably conceived of herself as combating laws that locked men and women into stereotyped positions. It seems regrettable that Ginsburg’s public commentary on Redding has perpetuated hoary gender stereotypes — accentuating girls’ vulnerability and boys’ resilience — that should be unnecessary to condemn the outrageous strip search at issue in that case.

Question: Of Parents Involved in Community Schools v. Seattle School District No. 1, in which the Supreme Court invalidated school integration programs in Louisville and Seattle, you write that Justice Anthony Kennedy’s solo opinion “merits examination for its jurisprudential innovation and because—given that four justices agreed with his conclusion, and a different four justices agreed with a portion of his reasoning—lower courts have accepted it as articulating Parents Involved’s governing standard.”

What do you see happening in this area of law now that Kennedy has retired?

Driver: Kennedy carved out an unusual middle ground in Parents Involved. Along with the contingent led by Chief Justice John Roberts, Kennedy articulated a deep aversion to government programs that classify individual students according to race for student-placement purposes. Kennedy’s expression of this idea highlighted notions of what might be termed “racial libertarianism.” Kennedy parted company with the justices who voted to invalidate the programs, however, by creatively disentangling two concepts that had traditionally been lumped together, as he contended that opposing racial classifications did not necessarily entail embracing constitutional colorblindness. Indeed, Kennedy explicitly distanced his position from Harlan’s elevation of the colorblind model in Plessy. “[A]s an aspiration,” Kennedy wrote, “Justice Harlan’s axiom must command our assent. In the real world, it is regrettable to say, it cannot be a universal constitutional principle.” Along with the contingent led by Justice Stephen Breyer, moreover, Kennedy endorsed the notion that racial integration in schools constitutes a worthy, even a venerable goal. “This Nation has a moral and ethical obligation to fulfill its historic commitment to creating an integrated society that ensures equal opportunity for all of its children,” Kennedy argued. “A compelling interest exists in avoiding racial isolation, an interest that a school district, in its discretion and expertise, may choose to pursue.” With his writing in Parents Involved as a major first step, Kennedy ultimately became the latest in a series of improbable saviors of affirmative action with his recent opinion in Fisher v. University of Texas at Austin (Fisher II). But it seems eminently probable that his successor will take a more hardline view of race-conscious admissions practices in higher education. Kavanaugh’s racial rhetoric as an attorney embraced colorblind constitutionalism and signaled unmistakable hostility to affirmative action.

Question: One of the court’s religion cases involving public schools was Santa Fe Independent School District v. Doe, which addressed the practice of student prayer before high school football games. In an amicus brief for two congressmen in support of the school district, Kavanaugh, then an attorney in private practice, wrote that schools could not be required to “actively prohibit” students from praying in school-provided platforms that allowed other, nonreligious messages. Ultimately, as you explain, the court disagreed, reasoning that “the high school’s elaborate involvement with the prayer transformed the pregame message into the government’s religious expression (which the Establishment Clause prohibits), rather than an individual student’s religious expression (which the Free Speech and Free Exercise Clause protect).”

How do you think Kavanaugh might approach cases involving religion and schools as a justice?

Driver: I fear that Kavanaugh’s elevation to the Supreme Court could raise the temperature in an area that has been relatively quiet over the last decade or so. Religion in public schools has been a perennial hot-button issue, but a variety of factors have recently combined to create a quiet détente in this area. First, the federal judiciary has clarified that students need not shed their religious identities at the schoolhouse gate — by both permitting public schools to observe a moment of silence at the beginning of classes and upholding student-led extracurricular clubs with a religious focus. Second, the meteoric rise of homeschooling — an option exercised largely by families for religious purposes — has eliminated a significant source of constitutional conflict. Many devout families who in prior generations would have sent their children to public schools now select homeschooling, and that transformation has succeeded in curtailing a host of potential claims contesting public schools’ curricula under the free exercise clause. Third, the Supreme Court validated the constitutionality of tuition vouchers for use at private schools, regardless of whether they are affiliated with a religious tradition. Fourth and perhaps most importantly, the Supreme Court has done an enviable job of helping to ensure that public schools are not the site of officially sanctioned religious proselytizing. Disconcertingly, Kavanaugh’s amicus brief in Santa Fe, which defended the school board’s position, suggests that the public school could once again become a hotly contested battleground over the proper place of religion in American society.

Question: In the October 2016 term, the Supreme Court granted but did not ultimately decide Gloucester County School Board v. G.G., the case of a transgender student who wanted to be able to use the school bathroom consistent with his gender identity. You write that “it seems improbable that … the institution will be able to avoid resolving [the student’s] central legal question for long.” “If the issue does soon return to the Court,” you continue, “it could quite plausibly pose a question not in the statutory and regulatory domain but in the constitutional domain.”

Could you elaborate on this last point about the statutory/regulatory and constitutional domains?

Driver: In assessing G.G.’s case, the U.S. Court of Appeals for the 4th Circuit initially rested its decision on the Obama administration’s interpretation of regulations regarding Title IX of the Education Amendments Act of 1972. This statute prohibits discrimination “on the basis of sex” for educational entities that receive money from the federal government. While Title IX contains regulations that permit sex-segregated bathrooms, the Obama administration instructed schools generally to treat trans students in accordance with their gender identities for purposes of those regulations. Following the Trump administration’s withdrawal of the prior administration’s interpretation, the Supreme Court remanded the case to the lower courts, in part because the institution prefers to avoid weighing in on legal questions that involve moving targets. Given the altered statutory landscape, the Constitution’s 14th Amendment could well be the next domain for this issue. Days after the Trump administration rescinded the prior guidance, a district court judge in Pennsylvania relied upon the equal protection clause to invalidate a rule that prohibited three transgender students from accessing restrooms congruent with their gender identities. Permitting transgender students to use only the various single-occupancy bathrooms located around the school did not, according to Judge Mark Hornak, satisfy transgender students’ rights under the 14th Amendment. “[D]iscrimination based on transgender status in these circumstances is essentially the epitome of discrimination based on gender nonconformity, making differentiation based on transgender status akin to discrimination based on sex for these purposes,” Hornak explained. “The Plaintiffs are the only students who are not allowed to use the common restrooms consistent with their gender identities.”

Question: The above question aside, what do you see as the next major intersection between the Supreme Court and the schoolhouse gate?

Driver: No legal issue sits higher atop the long list of needed educational reforms than eliminating corporal punishment against students — the sole remaining group that governmental actors are permitted to strike with impunity. The Supreme Court should revisit its decision in Ingraham v. Wright and establish that the Eighth Amendment, properly understood, prohibits educators in public schools from inflicting corporal punishment on students. Whatever Ingraham’s constitutional legitimacy in 1977, the last four decades leave no doubt that wooden paddles have no business on the behinds of public school students. Although the overwhelming number of states permitted corporal punishment during the 1970s, that number has dwindled to fewer than 20 today, and even many jurisdictions within those states have jettisoned the practice. Little evidence suggests, however, that the remaining jurisdictions that have elected to retain this archaic custom will soon decide to cease striking students of their own volition. That public educators continue beating students today — well into the 21st century — is nothing less than an abomination. So, my greatest hope for this book is that it may play some small role in encouraging the Supreme Court to abandon Ingraham v. Wright.

Perhaps my greatest fear in this area, however, is that the Supreme Court may reverse its decision in Plyler v. Doe. That decision prohibited public schools from banning children of unauthorized immigrants and thereby protected access to education for a particularly vulnerable subset of American society. Roberts, when he was a young attorney working in the Reagan Justice Department, coauthored a memorandum suggesting that Plyler v. Doe was incorrectly decided. If he continues to hold that view, Roberts may lead his colleagues in an effort to permit jurisdictions to cast out undocumented citizens from the nation’s public schools. That decision would, I believe, have calamitous consequences for our constitutional order.

Recommended Citation: Andrew Hamm, Ask the author: Our Constitution says we must take this risk, SCOTUSblog (Oct. 16, 2018, 11:17 AM),