OPINION:
THE SCHOOLHOUSE GATE: PUBLIC EDUCATION, THE SUPREME COURT, AND THE BATTLE FOR THE AMERICAN MIND
By Justin Driver
Pantheon, $35, 564 pages
Under the 14th Amendment, the fundamental protections of the Bill of Rights are extended to state and local action, so that even the smallest hamlet is inhibited from curbing freedom of speech or freedom of religion or punishing someone without a fair trial. But there’s an asterisk to that statement: It doesn’t necessarily apply to school boards. As University of Chicago law professor Justin Driver writes in “The Schoolhouse Gate”: “Typically, the public school setting affords students diminished constitutional protections as compared with other locales.”
The concept that school administrators have much more leeway in dealing with their charges than do other government functionaries is so ingrained into the American way of operating that for that nation’s first century and a half challenges to scholastic decisions seldom got into the courts. And when they did, judges proved extraordinarily deferential to the expertise of the educators whose actions were being questioned.
Take an 8-1 Supreme Court ruling in 1940 that found no infringement on the freedom of religion when an elementary school expelled siblings who refused to recite the Pledge of Allegiance because their Jehovah’s Witness religion taught that was forbidden idolatry. “The courtroom is not the arena for debating issues of educational policy,” Justice Felix Frankfurter wrote in the majority opinion. If judges tried to second-guess school authorities, he warned, it would mean imposing their “pedagogical and psychological dogma in a field where courts possess no marked and certainly no controlling competence.”
Just three years later, the justices reversed themselves on the matter of the Pledge of Allegiance, holding it unconstitutional to punish schoolchildren who on religious grounds refused to recite it. But the concept that judges have so little competence in educational matters that they need give great leeway to school administrators has continued undiluted. More than 50 years later, Justice Stephen Breyer wrote that “judges are not well suited to act as school administrators.”
Supreme Court decisions, of course, have not absolved school boards from all their responsibilities to protect the political and civil rights of their students. And the shifting — and often inconsistent — attempts to draw the line between permissible and impermissible curbs have challenged both those who set policy and those who must carry it out. It seems that no one has tried to put together a comprehensive look at what the Supreme Court has said about school integration and students’ rights of free expression and the interface between religion and education and other Bill of Rights protections in the school setting. That is what Mr. Driver has now accomplished.
The few legal scholars who have tried to take a comprehensive view of the clash between educational realities and constitutional demands have divided into two camps — those who take an absolutist view that Bill of Rights protections are every bit as operative within schools as they are elsewhere and, those who feel that courts should not intrude on educational policy at all.
Mr. Driver claims to walk a middle path, but most often in the hard decisions he comes down on the side of a more expansive interpretation of student rights. He applauds Supreme Court decisions that have invalidated laws mandating racial segregation in public schools, that have ensured students the right to express even widely unpopular political beliefs, and have ensured that those who hold minority religious beliefs are not forced to participate in religious activities of the majority. And he very properly faults the justices for not moving more aggressively to end corporal punishment in schools and to limit the use of drug tests and of physical searches of students and their possessions.
The high court’s holdings on matters of public education matter, first because of their immediate impact on 50 million public school students and their families. But the reach of these decisions is often far more extensive, Mr. Driver notes, because the rulings on liberty and equality have often had national relevance well beyond the school controversy before the justices. Today’s basic rules on church-state separation, on racial relations, on government censorship, and a multitude of other issues emanate from cases involving public education.
Moreover, there’s another underlying value at stake. Primary and secondary schools are where tomorrow’s leaders — and those who select those leaders — learn how our government works. It is vital that they learn not just through what it says in the textbook but what they see happening to themselves and their classmates. Justice Robert Jackson put it well in a 1943 decision when he warned that the fact that public schools “are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.”
• Daniel B. Moskowitz covered the U.S. Supreme Court for BusinessWeek and other magazines.
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