It takes about 15 minutes to drive from Edgewood to Alamo Heights in San Antonio, Texas. Yet the schools in each neighborhood are worlds apart.

Controversies over school policies that impact transgender students have increasingly made headlines in the United States for the past few years. What legal protections do transgender students have in schools? And how have the Obama and Trump administrations interpreted the law in this regard?

My guest today is Suzanne Eckes, professor in the Educational Leadership and Policy Studies Department at Indiana University. She has written about the various legal cases involving transgender students.

Citation: Eckes, Suzanne, interview with Will Brehm, FreshEd, 177, podcast audio, October 21, 2019. https://www.freshedpodcast.com/suzanneeckes/

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The past few shows have focused on climate change as being the biggest issue facing teacher unions globally. There are, of course, other big issues. One of them is propaganda. Misinformation campaigns have been on the rise partly due to the turn towards right-wing extremism in many parts of the world. Social media has created new ways to spread misinformation and propaganda, making education a powerful tool to combat the spread of lies and what we might call fake news.

My guest today is Maria Ressa, a Filipino-American journalist and author. Co-founder of online news site Rappler, she has been an investigative reporter in Southeast Asia for CNN and was included in the 2018 Time’s Person of the Year for her work combating fake news. She has been arrested for her reporting on Duterte, the Philippine president, and is currently on trial for cyber libel.

Religion in American public schools is a hot-button issue. Can prayers be said in public schools? What about in extracurricular activities? Can states provide funds to religious schools? And if parents don’t vaccinate their children for religious reasons but send them to public schools, what can the State do?

These questions don’t have easy answers and the US constitution offers little help. The Establishment clause of the First Amendment of the constitution, for instance, forbids Congress from making laws in support of religion but also protects the free exercise of religion. Finding the right balance isn’t always straightforward.

My guest today is Martha McCarthy. She is the Presidential Professor at Loyola Marymount University and the Chancellor’s Professor Emeritus at Indiana University. Together with Suzanne Eckes and Janet Decker, Professor McCarthy has recently published Legal Rights of School Leaders, Teachers, and Students(Pearson, 2019).

Today’s episode of FreshEd was put together in collaboration with the Education Law Association.

Citation: McCarthy, Martha, interview with Will Brehm, FreshEd, 159, podcast audio, June 17, 2019. https://www.freshedpodcast.com/mccarthy/

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Are there limits to what can be said on college campuses? When a far-right-wing speaker is disinvited to speak on campus, is it an issue of Free Speech?

My guest today, Neal Hutchens, explores these issues in his research and writing. Ultimately, his look at the legal issues facing universities when it comes to free speech and academic freedom goes to the heart of the purpose of higher education. What are colleges for?

Neal H. Hutchens serves as Professor and Chair in the University of Mississippi School of Education’s Department of Higher Education. His latest opinion piece on campus free speech laws was published in The Conversation in April.

Today’s episode was put together in collaboration with the Education Law Association.

Citation: Hutchens, Neal H., interview with Will Brehm, FreshEd, 156, podcast audio, May 27, 2019. https://www.freshedpodcast.com/hutchens/

Will Brehm 2:04
Neal Hutchens, welcome to FreshEd.

Neal Hutchens  2:05
Thank you very much, Will. I’m very happy to be here.

Will Brehm  2:08
So, about two years ago Ann Coulter, her appearance at the University of California, Berkeley was cancelled. Why was this event canceled?

Neal Hutchens  2:17
So, Ann Coulter, who is very much a conservative pundit -likes to play that role of conservative lightning rod- was invited by a student group at University of California, Berkeley to appear on campus. Berkeley is of course historically a center of free speech and expression in protests -that goes back to the student rights movement of the 1960s. Essentially what happened, with Coulter appearing on campus -and it was at a time that has continued of a lot of tension on campuses about certain kinds of speakers. Especially, I would say even speakers that push the envelope more than Coulter but certainly people like Coulter who want to advance a certain agenda. They want to really hit people’s buttons, they want to incite, they want to be provocative. So essentially what happened, there was a disagreement over where to have the event. The University was worried about -not just supporters of Coulter- but individuals who are opposed to her, so counter-protesters. And that’s happened at UC Berkeley several times in the last couple of years, certainly, and it’s something we could talk about later what happened at the University of Virginia and in Charlottesville, where we had riots that became deadly. So, you had Neo-Confederate white nationalist protesters and counter-protesters. So, it’s something that we have seen in the last several years that at certain times colleges and universities have speakers on campus, not just controversial, but institutions really have to worry about issues of safety for their students and for others attending. And so, with Ann Coulter, it really became a dispute over when to have the event, where to have the event. You had disagreements over whether she was being denied access but essentially pulled out. Later there was some litigation involving the student groups and others that had supported her being there with the university that was settled in 2018. Where the university agreed to pay some attorney fees but said essentially, we’re not having to change anything. We’re just entering into this settlement to avoid paying a larger amount. But you also had groups that are supporters that said this is a great victory for free speech rights. So that got a lot of headlines also at Berkeley and at other places you’ve had Milo Yiannopoulos. You’ve had Richard Spencer, sometimes. Charles Murray, who is another speaker that has gained headlines and you’ve had individuals protesting their appearance on campus. But this is kind of a dynamic -it gains a lot of headlines- but that we’ve seen played out on college campuses, especially in recent years. It’s not necessarily new issues of speech and expression and protest. They’ve been going on for decades at college campuses, but it’s really taken on a new profile and a new level of attention in recent years. And I think some of that is probably because we have certain kinds of organizations that are really pushing certain kinds of speakers on campus. I think they have a political agenda behind it. But that’s a way I think, to kind of contextualize what was happening with Ann Coulter’s appearance that did not happen at UC Berkeley.

Will Brehm  5:36
So, for UC Berkeley, the University, the administration was concerned about student safety and that was the sort of reasoning for canceling the event, not the issue of trying to limit free speech. Is that how they interpret what happened?

Neal Hutchens  5:55
I think that if you talk with the leadership of the institution, that would very much be their view is that instead of trying to regulate the content of the speech or the viewpoints expressed, the institution has an interest in safety. It also has an interest in keeping on the everyday functioning of the institution going even while you have speaking events going on. Now, Coulter and her supporters would have challenged that, “No, the institution is trying to shut down views because it doesn’t like us”. Again, I think a point could be made that I think sometimes for speakers like Coulter, or the organizations, especially some of the national ones that support her, they also get a lot of mileage out of being allowed on campuses. In other words, they’re pushing to be provocative so that really is part of the agenda. I think, if you peel back a little bit and examine it. But for institutions, by and large, and especially for public institutions, something that we’ll probably chat about soon is that they do have special legal responsibilities under the First Amendment, where they’re limited in being able to pick and choose speakers based on liking or disliking the message that they’re delivering. For instance, when Penn State University decided to not allow Richard Spencer who’s a white nationalist on campus: in its announcement, the University made very clear that its concern over safety was the guiding rationale for not allowing Spencer on campus. It said in the statement, the University did, that the university and its leadership were totally against all of his views. They were in opposition to any kind of values of the university, but it said, we’re not seeking to not have him on campus because of the views but because of the safety issues. And that’s something that gets muddled in a lot of these debates, is that institutions, you’ll have fingers pointed at them with the accusation that they’re really trying to stifle speech. But that can get muddled into the fact that they’re also really trying to regulate speech on campus in a way to, again, ensure safety and also all the other kinds of things that are happening on a college campus from classes to other events. And that’s not to say that institutions don’t violate these standards. I do think that institutions sometimes will overstep or overreach when it comes to regulating speech on campus but that’s certainly not always the case. And I think there are a lot of college administrators that they want to uphold the law and they want to make sure they’re following their policies and practices.

Will Brehm  8:41
Do you think that when some of these institutions do overstep the regulation of speech as you say, is there sort of a bias against right wing, conservative discourse and ideologues who come onto campus? Because you know, you hear about the Spencer’s and the Coulter’s, but you rarely hear about big events on campus that cause the same sort of political storm of more left-leaning or progressive thinkers that are also being invited on campus.

Neal Hutchens  9:15
I think that, one: that would be a really interesting area of empirical study. So, for instance, we have some research that would indicate that most college professors or a lot of college professors are left-leaning politically. But I think that’s a very distinct issue from whether or not institutions are more apt to shut down conservative speakers. I think something that would have to go into consideration of that issue, and I will admit, my view on this is I think that there are certain groups that have really seized up on the idea of free speech as political camouflage for other issues. I think Turning Point USA is a great example for that. Really using the idea of speech to push forward a political agenda. I think that in the current presidential administration we’ve seen that. For instance, former Attorney General Jeff Sessions, when he was in the part of the Trump administration came out very forcefully for free speech. I’m a native of Alabama. I remember that when Jeff Sessions was a political leader in Alabama, he tried to block LGBTQ student organizations and events. And so, I think that there’s been a narrative put forth that colleges and universities are seeking to block conservative speakers, because I really think it benefits a larger political agenda. And I do think there are some counter examples we can consider. So, for instance, we certainly have private colleges and universities that do regulate student speech very heavily. One example would be Liberty University. So, the president of Liberty University is a very strong supporter of President Trump. Liberty University has been noted on several occasions for censoring student journalists. There have also been issues in the past about the student democrats on campus, so that would be one example. For our religious colleges and universities that often do get left out of the conversation from certain groups, there’s been a lot of debate and struggle over LGBTQ student organizations and not allowing those on campus. I’ll give you another example of how this can often play out. So, Tennessee is a state like several other states that has enacted a campus speech law. So, the idea was -and if you look at the supporters in Tennessee- the legislature said, “We need this law because colleges and universities are often censoring conservative speakers”. So, we have a law in place in Tennessee. Roughly at the same time that this law has been passed and enacted, you’ll find that legislators and others in Tennessee have really been against an event called “Sex Week” at the University of Tennessee, which is sponsored by a student organization. And so that would be an example of -and you find you find these examples again and again of where, you know, and you can find them on the political left or the political right. But certainly, the idea that only conservative ideas can be a threat in relation to free speech. Another example would be that we had former Senator Kerry, who was invited to give a commencement speech at Creighton University. And the Republican leadership in that state said, “No, no, no, he shouldn’t be allowed to give the commencement speech”, and he actually pulled out. And so, that’s an example of how really these threats to speech can come from either side of the political spectrum. PEN America -which among its roles as an advocacy organization promotes freedom of speech and expression -it issued a report recently that I think is really informative. And it talks about there’s really not a free speech crisis on America’s college campuses but there are threats that exist. And these threats can come from either side of the political aisle. And also, the fact that I think that certain organizations have really pushed this idea of a free speech threat to advance an agenda that really has other political components to it. That’s much different than say, for instance, the American Civil Liberties Union, which I think if you look at their stance on free speech ideas, tends to be more neutral. Whatever the nature of the speech is, there are certain protections that should adhere to it. Another example of, I think a more neutral party in a lot of the campus free speech debates, would be the Foundation for Individual Rights in Education, FIRE as it’s often called -it’s become a really pivotal player in campus speech debates. So, FIRE will tend to take heat, I notice from both the political left and the political right, because they tend to advocate kind of for either side. You know, an interesting thing, for instance, would be if you go to a site like Turning Point USA and see the kind of litigation they’re supporting. You’ll see it coming from one side of the political spectrum. It tends to be if you take an organization like FIRE, or even the ACLU, you’ll see that they’ll become involved in speech cases that might be labeled the political left or the right or really, that don’t fit any, in our conventional notions of the political spectrum in the United States.

Will Brehm  14:44
So, you know, a lot of this obviously has to deal with the First Amendment, the freedom of speech. But we also know that American higher education is filled with public universities and private universities, and religiously affiliated universities. What are some of the legal issues that are circulating within these different types of institutions when it comes to speech and protecting speech?

Neal Hutchens  15:12
So that’s a really important distinction that can get lost in a lot of these conversations. For public colleges and universities, the First Amendment, which is often talked about -what that means is that they’re part of the government. When I teach a class on education law, and I have people that work at public colleges and universities, I’ll say, “Raise your hand if you work for the government”. And sometimes people don’t really raise their hands and I’ll say, “Raise your hand if you work for so and so institution which is a public institution”, and I’ll say, “You work for the government, you’re part of the government”. And so, to work at a public college or university means that you are part of the government. And under the First Amendment, there are limits on what the government can do in relation to the speech rights of individuals. And that holds true at public colleges and universities. So, a lot of the speech debates that have grabbed the headlines for instance, they’ve involved where student groups or others have invited a speaker onto campus. And in those kinds of situations where a college or university has created what’s often called a forum, a space for a particular kind of speech, usually under the First Amendment, outside of some pretty narrow exceptions, the government doesn’t get to pick and choose messages. And so, for instance, let’s say that I’m an administrator at a public college or university and we have a policy that student groups can invite speakers to campus. We’ve said any recognized student group is allowed to reserve certain space on campus for speakers. Now they have to be a recognized student group. They have to make sure that they do the application to reserve the space, they have to follow other kinds of rules. If they have done that, and I see Ann Coulter is scheduled to speak on campus, I, as an administrator at a public college or university cannot decide, “I don’t like the views of Ann Coulter. So, I’m just not going to let Ann Coulter speak.” Those are the kinds of things that are just very much textbook, elementary examples of violations of the First Amendment. Now, in the case of Richard Spencer, or the events that we saw at the University of Virginia, those start to be harder questions because I actually think that that’s where institutions have to look at the fact that these speakers are not really engaged in speech as much as they’re engaged in threats. And so, what are called “true threats”, or sometimes you’ll hear the term “direct threats”, those aren’t protected by the First Amendment. And so, I think where institutions are wrestling, when you have various groups that are wanting to bring speakers onto campus that -not just controversial- but that are really crossing over into threats. At my own institution, the University of Mississippi, we really recently wrestled with that issue. We’re of course in Mississippi, which is in the deep south, this is an institution that really has a historical legacy to deal with in terms of segregation. Our institution, in the last several years, has removed the state flag from campus. But for instance, we have Confederate monuments on campus, which we’re in the process of probably relocating. We had Neo-Confederates come to campus. People really didn’t want them here, but the institution was left with, how do you regulate that in the First Amendment? And these Neo-Confederate groups, I think, really, the institution had to really look closely at them and engage in a lot of outreach to see was the rhetoric really speech that the university couldn’t regulate on content grounds, or was it crossing over into threat -and that’s some of what institutions are having to deal with. And after Virginia where we had a counter-protestor who was killed in the events that happened at the University of Virginia, it shows that institutions have to take that very seriously. When Richard Spencer, several years ago, Richard Spencer, again a white nationalist, was scheduled to speak at Auburn University, and the University wanted to not allow him to speak. A court said, “No. The University has to allow him to speak”.  But there was actually some violence that erupted after that. No one luckily was killed, like what happened at Virginia. But in light of that, institutions have had to look at their policies for when outside speakers can come to campus. And so, there’s been some talk about, and for instance, Texas A&M University after Spencer was there changed their policy. I think Auburn University if they hadn’t changed it, they were looking at it. But in all these contexts, if a forum has been existed for speakers -either for invited speakers or even if the university has opened up a forum to outside speakers- generally under the First Amendment, outside of some particular exceptions, like true threats, the university cannot engage in the business of picking and choosing what views that it likes.

Will Brehm  20:18
So, I mean, one of the questions I have that comes up is that the distinction between a “true threat” and speech -like that line, I would imagine, is quite blurry.

Neal Hutchens  20:30
It can be blurry in the sense that -again, when rhetoric has crossed that line, and I do think that’s something that institutions as they’ve kind of become the societal focal point for a lot of these speech disputes. I mean, think about it. There are a lot of public places that these groups could decide that they want to go and show up and have events. No one is saying, “We’re going to head to the DMV. The DMV parking lot is where we want to have our major protest.” It shows the importance of higher education in society to colleges and universities. So, colleges and universities have been targeted for particular reasons and we’ve seen an escalation in the last several years by certain groups that are doing that. And I do think that after what happened at the University of Virginia, institutions have had to quickly ramp up how sophisticated they are about that. Now, I think one could say, one of the components has been in that is actually I think, for instance, campus law enforcement, or even campus security, coordinating with local and state law enforcement officials to actually get background on these individuals. One of the things that you’ll hear about when you have speakers like this coming to campus is actually engaging with them and reaching out to understand what their motives are. To understand events that may have happened. But one of the things I think that can cause consternation is that the idea of a true threat is something that could be restricted under the First Amendment is not that actually the individual has, maybe they don’t even have an intention of carrying out the threat. But if they are targeting particular individuals or groups, and is an actual credible threat of harm, or physical violence, then I think institutions absolutely can and should take action. And I don’t think that you would have advocacy groups like the ACLU or FIRE, certainly, they’re not going to argue with that. Where things get a little hazier tends to be often, for instance, under the disruption standard. And so, for instance, recently at the University of Arizona, you had a group of students that were referred to as the “Arizona 3”. There were a group of ICE [Immigration and Customs Enforcement] officers that were speaking on campus. The students wanted to engage in some kind of protest or disruption, that somewhat, although it looks like the presentation by the ICE officers was allowed to continue. The protesters followed the officers, at least somewhat to their car, and the students were arrested. And initially, there were criminal charges filed against the protesters. As I understand it, those charges have now been dropped. But that has also tended to be -there’s the threat issue, but I think the disruption issue, especially is where a lot of colleges and universities are trying to decide, at what point should we, for instance, have individuals arrested? Or at what point is this really in the educational realm, and at most we’re really looking at maybe the Student Conduct process, or also the fact that this is again, educational. We have students who are very engaged in what they’re doing. Maybe we should take a step back and before we say, our first option is to engage in some kind of discipline, maybe this is an educational moment. I remember not too many years ago, there was a lot of angst over the fact that college students were not engaged. They were passive, they didn’t care. And so now guess what, we have a lot of college students who care.

Will Brehm  24:16
Maybe very engaged. Too engaged for some people’s likings I would imagine.

Neal Hutchens  24:20
Yeah, I mean, I that’s it. It’s like, we want you to be active and engaged. But don’t do it so much that it makes us uncomfortable or disruptive. Colleges and universities are really, they’re mimicking, or they’re mirroring what’s happening in society. There’s just a lot of tension. There is a lot of disagreement. And so, for institutions, I think it’s very hard when students have this passion. And I’m now really speaking of students. I’m not speaking of external speakers. But for our student population, I think we have to be careful to be too legalistic, or to react too harshly to the fact that students are engaged in this process of activism and discovery. And so, for instance, that’s why I advocate if students were to take over an administrative building, I don’t think the first option is that you call the police and have people arrested for trespassing. I think your first option is, you talk, you engage. And hopefully through that process, in addition to listening to the students and the issues they’re bringing out, it’s also a chance for the students to consider what are the appropriate forms of activism? How, when should we take certain action? When should we not? Now I also think that we’re just in a period of where there’s a reexamination of what speech standards should be. The United States, under our federal constitution, and a lot of private institutions have adopted very robust free speech principles. This isn’t exactly the same that all countries do. So, for instance, in France and Germany, you can[not] have certain kinds of speech in France, anti-Semitic speech. Certainly, in Germany, images or speech related to Nazism can be restricted. You have libel laws in the UK that are much more friendly for individual suing under those laws. And so, it’s not that I’m saying that the United States automatically needs to change what it’s doing. But you certainly have a group of students and scholars and others who are saying, also, we maybe need to reexamine some of our free speech standards. Prioritizing our free speech standards, and ignoring other kinds of standards, such as a commitment to diversity inclusivity. And so, I think that is a divide that’s happening. And it’s something that’s playing out intellectually. But I would also say as someone who is an advocate of free speech. Well, that’s what we advocate all the time, exploring and testing ideas. And that’s also happening with what should speech standards be. So, for instance, it was really interesting. In the last year or so you’ve had two really prominent constitutional law scholars, Robert Post at Yale, and then Erwin Chemerinsky and they both wrote these op-eds where they really took different views of how free speech should play out on campus. So, these are two very distinguished scholars who are offering different viewpoints for this. So, I do think that these ideas are also being contested in a way that we’ll see -some of the students who don’t want certain kinds of speakers on campus, one day, they’re going to be the judges and the attorneys. And they may challenge how these standards should work.

Will Brehm  27:35
So, we’ve been talking a lot about public schools. And I know you mentioned that some private universities have taken very broad interpretations of what free speech looks like on campus. But are private universities held to a different standard when it comes to free speech in a legal manner?

Neal Hutchens  27:52
In general, they very much are held to a different standard. So, I talked about the public colleges and universities, their governmental actors, state actors. So that puts a responsibility on them to follow first amendment rules in regulating speech, and especially student speech or other speech on campus. Private colleges and universities don’t have to do that. And we see that, for instance, with religious private institutions. They can have a mission that will state that, you know, individuals enrolled in that institution or teach in that institution have to sign statements of faith. And so, they’re actually as private entities, they also have First Amendment protections related to speech and religion, that allow them to carry out their mission. The only real exception we have in California, they have a law called the Leonard Law, that it applies to private, secular institutions and requires that private, secular institutions have to give the same speech rights to students, as do public institutions under the First Amendment. But in general, private colleges and universities have much more legal leeway. And some institutions give much less discretion to students and their speech rights. But there are a lot of private colleges and universities that view freedom of expression and speech as really integral to part of what the institution is supposed to be about. And so, in their policies and other guiding principles, they give free speech, freedom of speech that’s very akin to the First Amendment. You’ll sometimes hear about the University of Chicago principles on free speech a lot recently. So, University of Chicago is a great institution, it’s also private. And so private colleges and universities, where a legal responsibility would come in for them is, if in their standards, for instance, in policies pertaining to students, if there’s a statement, we believe in free speech rights, we don’t regulate speech on the basis of viewpoint. But then they would, in fact, do that a student could have a contract-based claim. In general colleges and universities for all types of institutions but it’s especially important for private institutions, when they look at the student and the university and maybe they’re in a bit of dispute, they’ll apply contract-like principles. And so, if you think about student handbooks, or other things like that, that’s part of the contract. So, institutions have a legal responsibility to follow the terms they’ve set out the contracts and student disciplinary codes, student handbooks and other places.

Will Brehm  30:30
It’s such a fascinating topic, because it seems like what we’re debating is actually the purpose of higher education. Whether it’s an area where a diversity of speech can exist, whether there’s threats, and how they’re articulated, things like student activism. I mean, it really seems like these debates are so vital and important to the very foundations of what we mean by higher education.

Neal Hutchens  31:01
I think that’s right. And that’s why, I noted earlier that when you have groups and protesters, they don’t head down to the DMV in large, most of the time -I’m sure there are protests that happen at the DMV, probably spontaneously, at times.

Will Brehm  31:15
Just anger, just absolute anger.

Neal Hutchens  31:17
But Turning Point USA has not pushed for the President to issue an Executive Order about the DMV and freedom of speech. So, these are special places and institutions. I really think they’re a battle place for ideas and values. And so just as our society right now is very polarized, these ideas and values are playing out on our college campuses. I also think one thing to note about a lot of these speech debates that are happening is they’re really only one kind of the speech that happens on college campuses. So, for instance, I’m a faculty member, I had to go through a process called tenure. And I had to publish as part of that. And in that process, while I may think that I view that there were some important speech rights included under the First Amendment, it wasn’t unfettered. So, one of the things in general on free speech for the government is that it doesn’t engage in evaluating ideas. But if I’m a chemistry professor, my colleagues who are evaluating me for tenure and promotion, they absolutely evaluate my ideas. If they think they’re rubbish, I may not get tenured. If they think that what I’m teaching is incorrect, I can be in trouble. Likewise, in the classroom, free speech doesn’t exist in the same way as it does outside of the classroom. If I’m a student who does not believe in evolution, and I want to be a biology major, and I’m taking a class that is dealing with a section with biology, and I’m asked about evolution, and my response is, “Everything was created in six days”. My free speech rights protect me for saying that. No, that’s not how it works. And courts have been very consistent, that in certain circumstances, colleges and universities and professors and administrators, we can actually heavily regulate speech. And so, I think one of the things in this universe of free speech debates on campus is to realize that actually a lot of speech that does take place in higher education is supposed to be of a certain kind, of a certain quality. That’s why we have concepts like peer review, so things can be vetted, they can be tested. And so, I think that that sometimes doesn’t necessarily get recognized the nuance of all the different kinds of speech that happens on our college campuses. And a lot of the protests and other things -and I think this is part of the debate of college campuses. Is to what extent should our college campuses, just be kind of the general public forum for debate? In other words, you show up, you get to say whatever you want, there’s no evaluation of quality of that. And I think you certainly have some groups and entities that would say, at least part of the college campus, that’s absolutely what it needs to be. I think where we’re seeing somewhat of a pushback is that you have other advocates for certain kinds of values, including the educational mission to say these things don’t align with the educational mission. And if we look at that educational mission, we evaluate the quality of speech and ideas every day, students don’t earn certain grades because of the quality of the speech, because the ideas are deemed bad or shoddy. People go to conferences, academic conferences, or they present on campus, I know that when I’ve presented in front of peers, including at campus talks, people disagree with me, and they tell me, “Those are really bad ideas that you have Hutchens.” And that’s part of what we do. And we actually don’t treat all ideas as exactly equivalent. I mean, that’s part of this -in the scientific process, for instance, you’re testing things, you’re looking for those answers. And so, I do think though then it becomes an interesting question that really has been pushed to the fore that in this environment of higher education, in which ideas are actually often heavily contested, and people actually are evaluated for their speech and ideas. They maybe don’t earn the highest grade in the class. Maybe they submit a dissertation or another paper that has to be revised, or maybe someone doesn’t get tenure, or they don’t get a job. Well, then how much are we just the general public sphere where there is no evaluation of the ideas? And so, Robert Post who I talked about earlier, who is at Yale Law School, a leading person writing on academic freedom and constitutional law, he really thinks institutions have gone too far in just saying part of our job is to just be this general place for free speech and expression. We need to push back against that. We need to question with student groups and others, what’s your educational purpose for having this speech on campus? And so, I do think that’s a countervailing push that we’ve seen against some of the Free Speech Movement. And you know, what will be interesting to see in 5 or 10 years, do we see some change in how some of the rules work? Or do we actually just open it up more in terms of what we see for instance, under certain state laws that have been passed?

Will Brehm  36:43
Well, I for one am going to keep following your work over the next 5 to 10 years to see what ends up happening. Neal Hutchens, thank you so much for joining FreshEd. It really was a pleasure to talk today.

Neal Hutchens  36:53
Thank you very much. I really enjoyed it.

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Laws that mandate education for special needs students have not always existed. In the United States, courts only began referring to students with special needs in the early 1900s. At the time, such students were typically excluded from public school.

Things began to change after the Brown v. Board of Education supreme country ruling in 1954. Twenty years later in the 1970s, Congress enacted various legislation mandating educational services and support for children with special needs.

My guest today is Charlie Russo. In our conversation, Charlie details the power of the Individuals with Disabilities Education Act and situates it in an international context.

Charlie Russo is the Joseph Panzer Chair in Education in the School of Education and Health Sciences and Research Professor of Law in the School of Law at the University of Dayton.

Citation: Russo, Charlie, interview with Will Brehm, FreshEd, 155, podcast audio, May 6, 2019. https://www.freshedpodcast.com/charlesrusso/

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Today we continue our Education and Law mini-series with a show on the legal and policy issues surrounding special education. My guest is Janet Decker, an Associate Professor in the Educational Leadership and Policy Studies Department at Indiana University. Dr. Decker became interested in special education policy when she taught students with autism.

In our conversation, Dr. Decker talks about the legal term FAPE, which stands for Free and Appropriate Public Education. FAPE is legally guaranteed to children under the Individuals with Disabilities Education Act. It is one of the most important legal issues in special education, but also one of the most problematic. What is the definition of ‘Free’ and ‘Appropriate’ ‘Public’ ‘Education’?

Janet Decker’s latest co-written book with Martha McCarthy and Suzanne Eckes is Legal Rights of School Leaders, Teachers, and Students, published by Pearson.

This episode was put together in collaboration with the Education Law Association.

Citation: Decker, Janet, interview with Will Brehm, FreshEd, 151, podcast audio, April 21, 2019. https://www.freshedpodcast.com/decker/

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Today we kick off a mini-series on education and law. Intermittently, overly the next 8 months or so, we’ll be airing a collection of conversations with scholars affiliated with the Education Law Association. These shows will touch on timely legal and policy issues affecting education.

For our first show in the education and law mini-series, I speak with Julie Mead about her new co-written report with Suzanne Eckes for the National Education Policy Center entitled: How school privatization opens the door for discrimination.

In our conversation, we touch on a range of issues related to voucher programs and charter schools. Julie reminds listeners that the dictionary definition of discrimination is not the same as the legal definition.

Julie Mead is the Associate Dean for Education and Professor in the Department of Educational Leadership and Policy Analysis at the University of Wisconsin at Madison.  She is a member of the Education Law Association.

Citation: Mead, Julie, interview with Will Brehm, FreshEd, 149, podcast audio, April 8, 2019.

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Today I continue my two-part conversation with Justin Driver, the author of the new book, The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind.

In today’s episode, Justin recounts his biography from growing up in Washington DC to clerking for two Supreme Court justices.

Justin takes us through some of the Supreme Court cases involving public schools he thinks are most important but that receive little attention today.

He also looks to the future given the recent confirmation of Justice Brett Kavanaugh.

Justin Driver is the Harry N. Wyatt Professor of Law at the University of Chicago Law School. His book, The Schoolhouse Gate (2018 Pantheon), is receiving rave reviews. The New York Times called it “indispensable” while the Washington Post called it “masterful.”

Citation: Driver, Justin, interview with Will Brehm, FreshEd, 135, podcast audio, November 19, 2018. https://freshedpodcast.com/driver-p2/

Will Brehm 2:11
Justin Driver, welcome to FreshEd.

Justin Driver 2:13
Glad to be with you, Will. Thanks.

Will Brehm 2:15
Another tactic that you talk about in the sort of post-Brown era is this idea of color blindness. Can you explain how that has been used to sort of advance a particular agenda that might be counter to what Brown ruled?

Justin Driver 2:31
Yeah, so the colorblind notion of the 14th Amendment says that governmental entities are almost always prohibited from taking account of race no matter the purpose. And so Chief Justice Roberts’ opinion in Parents Involved can be seen as being about a colorblind vision of constitutional law. And of course, that vision of constitutional law has important implications for our higher education in thinking about the realm of affirmative action. And this is, you know, of course, the subject of a lawsuit that involves Harvard College right now. Interestingly, in the Parents Involved case, Justice Kennedy sort of disavowed the notion that the Equal Protection clause requires colorblindness. He voted to invalidate the programs in Louisville and Seattle because they classify individual students according to race. But he did insist that schools could take account of race, therefore not be colorblind, when they are drawing district boundaries in an effort to bring about racial integration or when they are citing schools, when they were building a new school, they can be aware of the racial demographics of the city as a whole and try to foster racial integration in that way. So, this is one area where we may see his replacement, Justice Kavanaugh, take a more conservative line in this area.

Will Brehm 4:14
So, it is quite interesting that you know, what you said at the beginning of our conversation where schools are typically the first encounter of the government for people, for young adults, for children, for citizens. But yet we see this struggle constantly of constitutional rights stopping at “the schoolhouse gate” to use the title of your book. So, what have you found to be sort of the common arguments in favor of limiting the Supreme Court’s reach into schools?

Justin Driver 4:47
Yeah, there are a host of arguments that recur in this area. Perhaps the foremost is that people say, well, Supreme Court Justices are not teachers, and they do not know what is happening in public schools. They also say that the schools are quintessentially local endeavors, and therefore the federal government should play no role whatsoever in this area. And then perhaps the other final reason would be that the Constitution of the United States does not mention education. I don’t find any of those arguments persuasive, and when one notes that all three of these arguments were advanced by the proponents of Jim Crow during the era of Brown v. Board of Education, it seems to me that we should all be less accepting of the power of those arguments. This isn’t to say that every dispute in the schoolhouse should make its way into a federal courthouse. But it does suggest that we should not just reflexively accept those arguments.

Will Brehm 6:09
So, I want to ask how you first got involved in studying education law. Where did you end up going to school in America? Like public school or private school? What is your background in schooling and legal issues in America?

Justin Driver 6:27
Yeah, so I grew up in Washington, DC. I grew up in South East Washington, DC, east of the Anacostia River. Starting from a very young age, I traveled way to upper Northwest Washington, the most privileged segment of Washington, DC, and in order to do that, I caught a bus to two different subway lines, and then had a long walk, and as I would undergo this daily trek round trip, I would think, what am I gaining as a result of this journey? Conversely, what are my neighbors not gaining? I can remember learning about Brown v. Board of Education right around 1985 and thinking that in the nation’s capital within shouting distance of the Supreme Court’s marble palace, there are still some schools that are all black, and that suggested to me that there’s often a large gap between law on the books and life on the streets. And then, when I graduated from college, I very much thought I was going to be a public-school teacher for the rest of my life. I got certified to teach public school and taught AP US history and civics to ninth graders. And when I was doing that, I had some vague sense that there were constitutional decisions that shaped the schoolhouse, but I would have been hard pressed to identify, say, Tinker v. Des Moines. And so, one of the goals that I have for this book is to render, in an accessible way, the origins of students’ constitutional rights, and the contours of students’ constitutional rights in a way that, not just lawyers but ordinary folks, including, you know, educators and principals and even enterprising high school students can understand. And so that’s sort of one of the major audiences for this book.

Will Brehm 8:28
And eventually, you end up being a clerk for two Supreme Court Justices. I think it was Justice Breyer and also Sandra Day O’Connor. Did you end up talking to them a lot about education and, you know, constitutional issues inside public schools?

Justin Driver 8:46
I did, yes. Both Justice Breyer and Justice O’Connor played no small role in motivating me to undertake this project. Not by directly encouraging me but through my interactions with them. You know, Justice O’Connor, when I was with her, was a retired Justice, and she had begun to shift her attention to thinking about the importance of civics. She was very disheartened to think about the way in which many young people don’t understand even foundational concepts of our government. And so, she was interested in trying to promote civic awareness about the separation of powers. My goal here is to do a similar sort of thing. That is to say, I believe that if students can think about their own rights, that as they exist within the schools, that it may make studying the constitution a more accessible, you know, sort of document. And so, I do hope that this will make people have greater amounts of awareness of constitutional rights generally, but if you can reach students at an impressionable age in a way that they will have a great ability to apprehend what’s going on, I think that that will lay an important foundation. Justice Breyer was also important. When I was with him, two of the cases that I write about in the book were decided, the ‘Bong Hits 4 Jesus’ case and also the ‘Parents Involved’ case. And he dedicated enormous amounts of time to thinking about both of these cases. And in doing so underscored to me the importance of constitutional decisions in schools for our nation’s larger constitutional order. You know, his father was an attorney for the school board in San Francisco, and he would often talk about how important that work was. And so, both Justice Breyer and Justice O’Connor did play, as I say, a significant role in motivating me to think about this work.

Will Brehm 10:54
Was there ever a time where you disagreed with them on some educational issue?

Justin Driver 10:59
I hold both of the Supreme Court Justices in very high esteem. I felt very lucky to be a law clerk there, and I viewed it as my job to help them with their jobs. You know, I now view the ‘Bong Hits 4 Jesus’ case in a way that is different from how Justice Breyer would have resolved it. Justice Breyer would have resolved the case along grounds of something called “qualified immunity”, and therefore not reached the underlying first amendment question. He did not go so far as to say that Joseph Frederick did not have a First Amendment right here, but he just wouldn’t have reached the question. I would have, you know, now today certainly have joined the opinion that Justice Stevens wrote, saying that punishing Joseph Frederick for this sort of speech violated his freedom of speech rights.

Will Brehm 12:00
So, returning to some of these cases and topics that your book very carefully details -both the public opinion, the Justice opinions, even the legal opinions in a lot of these journals that are published at the time- one of the topics that really stuck out to me was corporal punishment. I had absolutely no idea that this was still legal in America, let alone practiced -well, quite a lot in a few states- and more importantly that there was a clear racial difference between which students were receiving corporal punishment and which were not. And in this case, it was more African American students receiving corporal punishment. So, has the court ruled on corporal punishment, and what was some of their logic behind these rulings?

Justin Driver 12:52
Yeah, this is the issue that I care the most about that I cover in the entire book. The, in my view, scandalous persistence of corporal punishment. The Supreme Court in the 1970s had an opportunity to rein in corporal punishment in a case called Ingraham v. Wright. The case arose from truly egregious facts. James Ingraham was a middle school student in Florida, and he was on stage with some of his friends during an assembly, and he was instructed to depart the stage and did so with an insufficient sense of alacrity. For that pretty classic Middle School behavior, he was summoned to the principal’s office to receive five licks in the parlance, and that is to say, he was going to be struck with a two-foot-long wooden paddle. When his turn arose, he protested his innocence, and two assistant principals grabbed him, bent him over the principle’s desk, held down his arms and his legs, and he received not five licks but 20 licks. And this beating was so savage that even three days later he had a bruise that was six inches in diameter, that was tender, swollen, and purplish in color, and also oozing fluid. So, you would be hard-pressed to imagine a more, sort of, shocking set of facts than those that existed at Charles R. Drew Junior High School, James Ingraham’s school. It was an all-black school. And James Ingraham’s treatment was part of a larger reign of terror that existed where students were beaten for sitting in the wrong seat, for wearing the wrong socks to gym class, you know, for just incredibly minor infractions. And the school district, when they defended this policy, ended up making matters worse. There was a principal from a school in Miami Beach who said, “Oh, no, we don’t use corporal punishment in this school. We have a predominantly Jewish population, and they understand oral persuasion”. The implication there, of course, is that the black students at Charles R. Drew Junior High School understand only brute force. And so, the Supreme Court of the United States, it was a very odd opinion of five to four decision, Justice Powell said this does not qualify as punishment for constitutional purposes. The Eighth Amendment, of course, prohibits cruel and unusual punishment, but Justice Powell said, that, in effect means cruel and unusual punishment that stems from a criminal conviction. And so it was a very surprising decision because only a few years earlier, the federal courts got rid of what was called “the strap” in prison, meaning hitting inmates, and people thought, well, if you can’t hit people who have been convicted of crimes for not following orders, there’s no way in the world that you’re going to be able to hit public school students. But the Supreme Court did not see it that way and exactly as you suggest, Will, this is not just a historical artifact. Corporal punishment still exists. There are 19 states that have it, but in some ways that overstates its prevalence because there are five states that account for more than 70% of the instances of corporal punishment. And if there’s any, as I say, single goal that I have for this book, that it elevates the salience of corporal punishment and invites the Supreme Court to revisit this issue because I don’t think that the jurisdictions that retain this practice at this late date are going to abandon it on their own.

Will Brehm 16:38
And what is the constitutional issue at play for corporal punishment in your eyes?

Justin Driver 16:43
Yeah, so the strongest claim would be the Eighth Amendment claim, and I think that this is an argument that would appeal to liberals, but also the libertarian inflected vision of constitutional law that is ascendant in some right-leaning circles. If you are a libertarian, you have a skepticism of state authority. And in what instance could it be starker where the state is exercising dominion over an individual than physically hitting someone with a foreign object? I should say that public school students are the sole remaining group in American society that governmental figures can strike with impunity.

Will Brehm 17:33
Wow. I mean, that leaves me speechless. Another issue today is, and we hear it more and more from politicians, is that we need to start arming teachers to prevent lone shooters with the rise of mass shootings in American schools. What are some of the constitutional issues that you see when it comes to arming teachers, when it comes to police officers inside schools, as we see more and more of that happening. You know, what sort of issues arise constitutionally?

Justin Driver 18:08
Yeah, so the Supreme Court’s case involving the Second Amendment is a case called Heller v. District of Columbia. It’s written by Justice Scalia and did confer some limited individual’s right to bear arms, but the opinion was quite careful to say that nothing in the opinion should be understood to disturb regulations involving firearms in sensitive government buildings, and it particularly mentions public schools. So, I have seen some claims that the Second Amendment should make it so that laws prohibiting guns in public schools are impermissible. That is a very difficult argument to square with Heller itself. It is of course true that there have been a number of truly upsetting and deeply disturbing incidents involving firearms. Indeed, massacres is not too strong a word in thinking about Columbine and Newtown, and Parkland. And so, there is no doubt that many judicial opinions refer to our post-Columbine era. I am sensitive to the needs for school safety. I take that very seriously. And I do not think that if a school wishes to have metal detectors that the constitution should be understood to prohibit those efforts. I do also think at the same time that we need to have a realistic approach to the likelihood of a school shooting that’s going to happen at any particular school. I came across a statistic that suggested that any given school in America can expect a school shooting roughly once every 6000 years. And so again, it is to say that these are rare events. They are highly salient events, but we should not believe that a school shooting is a likely event where our children, say, attend schools.

Will Brehm 20:16
Another issue that seems to be on the minds of many Americans today is illegal immigration. We have Donald Trump constantly talking about this caravan of basically migrants from South America, Latin America, moving their way up through Mexico to the Mexican-American border, hoping to seek asylum from all sorts of various troubles from where they came from. In terms of immigration and unauthorized immigration, has the court ruled on anything related to immigration and education?

Justin Driver 20:54
Yeah, so there is a really important case that too few people know about called Plyler v. Doe, which was decided in the early 1980s. That case involved a Texas statute that sought to exclude unauthorized immigrants from Texas public schools. The Supreme Court of the United States invalidated that measure and said that it is unconstitutional to bar, in fact, the children of unauthorized immigrants from the nation’s public schools. Some constitutional law professors have tried to minimize the importance of that case. They say, well, Texas was the only state in the nation that had such a law at that time, and so we should not view the Supreme Court’s intervention as momentous. They say, in effect, that only those cowboys down in Texas would be drawn to this sort of a measure. But we know very well today -as your question suggests, Will- that anxieties about unauthorized immigration are far from confined to the nation’s border. And so, I view Plyler v. Doe as so significant because had the Supreme Court not in effect interred the Texas measure, there is no doubt that other states would have passed similar legislation. And so, as a result of the Plyler v. Doe decision, millions of children have been able to receive an education who otherwise would have been denied one. And so rather than viewing that as some insignificant decision of marginal import, I think that Plyler v. Doe is among the most significant decisions that Supreme Court has ever issued.

Will Brehm 22:40
I mean, obviously, it had a huge impact on access to education, which is seen as an idea that so many people in the world of education want to advance.

Justin Driver 22:51
Yeah, I should say one more thing about Plyler v. Doe, by the way, that I fear that the current court could revisit that issue. John Roberts, when he was a young attorney working in the Reagan Department of Justice, co-authored a memorandum suggesting that Plyler v. Doe was incorrectly decided. You know, Justice Kennedy, who is now no longer on the court, never weighed in expressly on Plyler v. Doe, but I strongly believe that he would have found it to be correctly decided. I could quite easily imagine his successor thinking that it was wrongly decided, and so I fear that states are going to enact legislation that is designed to invite the Supreme Court to revisit that issue, and if the court were to reverse course, that would have calamitous consequences for our constitution order.

Will Brehm 23:45
That brings up a very interesting point. Throughout your book, you really focus on the courts composition, and you focus in on these different Justices and sort of the different majority opinions that they could form, you know, 9:0 or sometimes 8:1 or sometimes 5:4. We now live with a Supreme Court that is deeply divided ideologically. But Justice Roberts is now seen as sort of the quote unquote, swing vote, which I am not sure if that even is the right way to describe it. But he said sort of in the middle ideologically. So, what do you see if you were to sort of think about the future of the Supreme Court and education? What do you see happening in terms of student constitutional rights?

Justin Driver 24:39
Yeah. So, in addition to the Plyler v. Doe decision, potentially being in flux, I can imagine a couple of other areas that Justice Kennedy’s departure and Justice Kavanaugh’s joining the court could make a difference. So, I think about the establishment clause involving religion. The Supreme Court has, in my view, done a pretty good job of making sure that public schools are not places where students are being proselytized to. When Kavanaugh was in private practice, he co-authored a brief casting doubt on some of this jurisprudence in a case called Santa Fe v. Doe, where a public school had students to deliver prayers over at a high school football game over the school’s loudspeaker. Justice Kennedy thought that did violate the establishment clause, but if Kavanaugh continues to hold the view that he expressed as an attorney, then the area of religion in public schools is a potentially hot button area. Another area that keep an eye on would be the legitimacy of race-conscious actions taken by school boards. We spoke about Parents Involved earlier, and Justice Kennedy departed from the rest of the GOP appointed Justices in finding that some race-conscious measures were permissible. Kavanaugh, when he was in private practice, wrote a piece for the Wall Street Journal, where he suggested that race-conscious measures should be almost automatically regarded as unconstitutional. And so, I think that those are two areas where the current court could lurch to the right in the area of students’ rights.

Will Brehm 26:49
So, looking across the history of Supreme Court rulings, what can we learn?

Justin Driver 26:55
One of the most important lessons that I draw from this research is that the Supreme Court has an especially vital duty to protect constitutional rights within the schools. The Court’s decision in Barnette from 1943 makes this very point in a really powerful way. That case involved requiring students to pledge allegiance to the American flag. Jehovah’s Witnesses believe that reciting the Pledge of Allegiance violated their religious faith. Justice Jackson wrote an opinion for the court that invalidated that measure, and he said that the freedom of speech involves a corollary right not to speak. But more important than any single line from that opinion is his insistence that the school is a vital theater for constitutional law, because Justice Jackson said, if we discard constitutional rights within schools, then we teach youth to discount constitutional principles as mere platitudes. And he says, we risk strangling the free mind at its source. And I cannot imagine a more powerful and important lesson than the one that Justice Jackson gave to us in the 1940s.

Will Brehm 28:24
Well, Justin Driver, thank you so much for joining FreshEd, it really was a pleasure of talking today.

Justin Driver 28:29
Thank you, Will. I really enjoyed our time together.

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Do constitutional rights stop at the schoolhouse gate? Are American students, in other words, granted the freedom and protections outlined in the US constitution?

This question doesn’t have an easy answer.

My guest for the next two episodes is Justin Driver. In his new book, The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind, Justin explores most if not all Supreme Court rulings on students in public education.

In the first part of my conversation with Justin, we explore the constitutional significance of school rulings and focus much of our attention on the issue of race.

Justin Driver is the Harry N. Wyatt Professor of Law at the University of Chicago Law School. His first book,The Schoolhouse Gate(2018 Pantheon), is receiving rave reviews. The New York Times called it “indispensable” while the Washington Post called it “masterful.”

Citation: Driver, Justin, interview with Will Brehm, FreshEd, 134, podcast audio, November 12, 2018. https://www.freshedpodcast.com/driver-p1/

Will Brehm 2:15
Justin Driver, welcome to FreshEd.

Justin Driver 2:18
Glad to be with you, Will. Thanks.

Will Brehm  2:19
So, I want to just jump right into this and ask why is public school a significant location to even study constitutional issues?

Justin Driver  2:28
Yeah, we don’t often think about public schools as legal entities, but they are, in fact, animated by Supreme Court decisions affecting constitutional law. It’s also true that the public school is the first place that most people encounter the government for sustained periods in their time. There are more than 50 million public school students in the country and it takes several million of adults to run schools and that means that about one sixth of the American population is in public school on school days. It’s also true that I am particularly drawn to examining constitutional law and the public schools because the disputes that enter the school often are reflective of larger cultural anxieties that exist throughout the nation. And so, one of the arguments that I make in the book is that by tracing these particular conflicts, one can understand the last 100 years of American history. So those are a couple of reasons why I think this is a particularly important area to study.

Will Brehm  3:43
And so, for much of the history of the Supreme Court though, the justices rarely ruled on education, on school. So, what was the general logic historically that the court took when it came to schools and the Constitution?

Justin Driver  4:00
Yeah, the first case that I write about in much depth chronologically, is a case called Cumming v. Richmond, where a community in Georgia closed its high school for black students but kept its high school for white students open. And the Supreme Court of the United States refused to find that was a violation of the equal protection clause. Even though you might regard these schools as some people have said as separate and unequal, right. There’s no high school for black students. Nevertheless, the Supreme Court said, in effect, that these are local matters that the Constitution of the United States says nothing about one way or another. We’re not going to get involved in this quintessentially local arena. And that rationale was representative of the overall approach for many years.

Will Brehm  4:59
And another case that I often think about is Plessy v. Ferguson, but I always associated it with schools, but in fact, it was about train cars. Could you just explain the logic of that case and how it fit into this sort of historical narrative of education being seen as a local issue?

Justin Driver  5:18
Sure. So, Plessy v. Ferguson is a case that’s decided in 1896. Louisiana has a racially separate rail system. The language that many people identify with Plessy v. Ferguson is “separate but equal”. That language comes, not from the Supreme Court opinion, but it actually comes from the Louisiana statute in question. And the Supreme Court decision written by Justice Brown, says that if racial classifications are reasonable then they pass constitutional muster. Justice Harlan, of course, wrote a famous dissenting opinion where he says that our Constitution is colorblind. Interestingly, for our purposes, Justice Harlan wrote the majority opinion in Cumming v. Richmond, which we spoke about a moment ago, upholding the closing of the black school. And this suggests that Justice Harlan is not quite the avatar of modern racial enlightenment that some Supreme Court Justices hold him out to be.

Will Brehm  6:33
And looking at these two cases, Plessy v. Ferguson and Cumming v. Richmond, you say that African Americans at the time, in the 19th century, the court basically provided civil equality but denied African Americans’ social equality. Can you explain what the difference was at that time?

Justin Driver  6:55
Yeah, so this is an unusual thing to our modern ears. We think of equality as being a largely undifferentiated concept. But in the 19th century it was divided into a few different categories including, as you suggest, civil equality on the one hand, and social equality on the other. Civil equality would have meant the ability to enter into contracts and things of that nature whereas social equality would have meant the sort of things that lead to interracial intimacy, including interracial marriage, but also importantly, for purposes, integrated schooling would have been regarded as socially equality. And so, Justice Harlan dissented in the Plessy v. Ferguson decision because he viewed rail cars as involving civil equality. Evidently because people were buying tickets for rail cars, he viewed that as being civil equality, whereas the Justices in the majority in Plessy v. Ferguson would have regarded the rail car separation as a form of social equality. And so, Justice Harlan is able to write the Cumming v. Richmond opinion because he viewed integrated schooling also. And he would have regarded that with  schooling matters as involving social equality, and therefore, the Equal Protection Clause would have said nothing about that whatsoever.

Will Brehm  8:27
So, it seems like a lot of the sort of beginning cases of the Supreme Court in education or in public schooling in particular, were really about saying, schooling is this local issue, and we’re not going to get involved too much. Separate but equal is okay. So, when did the Supreme Court actually take more of a stance that said, okay, the state is actually infringing on civil liberties of students or of individuals when it came to schools? When did that actually happened?

Justin Driver  9:01
Yeah, beginning in the 1920s, the Supreme Court begins its involvement with education. It’s important to say that the major cases from the 1920s did not involve public schools but were instead thinking about constitutional infringements by the state with respect to private schools. One case from the 1920s is a case called Pierce v. Society of Sisters. There, Oregon passed a measure that required all students to attend public schools. In other words, it sought to outlaw private schools and in particular, parochial schools. The measure was backed by the Ku Klux Klan and their fear was that Catholic schools prevented Catholics from being what they would have referred to as “Americanized”. The Supreme Court of the United States invalidated that measure and said in resident language, the child is not the mere creature of the state. And so, Pierce v. Society of Sisters along with another pair of decisions, that was an important intervention and step on the path toward finding that public school students also had constitutional rights within the public school.

Will Brehm  10:31
I find that pretty amazing that it took so long to recognize that students, American students, had constitutional rights like American adults. I guess that’s the separation here.

Justin Driver  10:47
Yeah, that’s right. It is a striking phenomenon. One of the things that jumped out at me as I was working on this book was the incredibly contingent nature of constitutional decision making. And we sometimes think that constitutional law is sort of foreordained and this was anything but, in the sense, that the development in this area was hardly something that would have been foreseen at the beginning. And so, it was very much unfolded in fits and starts and quiet plausibly, many of the most important decisions could have been decided the other way. So, what jumps out at you is also something that’s striking to me.

Will Brehm  11:32
And one of the most important decisions that I think you highlight in your book is Tinker v. the Des Moines Independent Community School District. Could you explain what that case was and how that’s relevant to seeing students as having constitutional rights?

Justin Driver  11:49
Yes. So, Tinker is a case out of Des Moines, Iowa, where in the 1960s students want to wear black armbands in protest of the Vietnam War. This is in December 1965, long before there’s any mass mobilization against the Vietnam War. When the Des Moines school officials got wind of this plan, they said, “Oh, no, this is too hot of a topic. We have a graduate of the Des Moines schools who died over in Vietnam. And he still has buddies here. And if you all wear black armbands, his friends are going to regard you as dishonoring his legacy” and so they said, “You can’t wear the armband and said that you are unwelcome to attend school as long as you wear the armbands”. And at the time it’s a really open question as to whether students have first amendment rights. Justice Fortas writes a magnificent opinion and it gives me the title for my book, he says, “It can hardly be argued that students shed their constitutional rights at the schoolhouse gate”. Justice Black wrote a vehement dissenting opinion, where he says, students are there to be seen and not heard. Our society is too permissive. And, in effect, the youth culture is spiraling out of control. Justice Black gave his descent from the bench and he spoke for more than 20 minutes. That’s a signal of unusual, deep displeasure with the majority’s opinion. It’s not merely that the majority was wrong for Justice Black, it’s that they were dead wrong. So, he spoke for a really long time, he was fairly frothing at the mouth and Chief Justice Warren is reported to have said, “Old Hugo really got caught up in his jockstrap on that one”. And so, it’s a really remarkable opinion. But, you know, the opinion by Justice Fortas, it was significant because it reconceptualized the role of students in American society. Fortas, the real sort of innovation here is that, he says that, “Students are not merely receptacles that teachers fill with information. Instead, students talking to each other about the issue of the day is not some sort of distraction but instead a vital part of the educational process itself”. So, I think of Tinker as a really important breakthrough. Unfortunately, in my view, the court has failed to build on Tinker in the way that it should have.

Will Brehm  14:41
So, what happened since then? I mean, it seems like giving agency to students in the educational process -by giving them constitutional rights, the ability to have free speech, advanced ideas in their own way, challenge ideas that are seen as normative -that seems like, in my mind, a good thing. I mean, you’re saying that that has actually sort of shifted to the other direction, towards Justice Black’s dissent?

Justin Driver 15:09
Justice Black’s dissent continues to be embraced by Justice Thomas. He wrote an opinion in a case called Morse v. Frederick from 2007 that Justice Black was exactly right, and that Tinker was wrongly decided, students should have no first amendment rights whatsoever. Justice Thomas, of course, is an originalist and he said that, you know, in the original understanding, teachers commanded, and students obeyed and so it was quite striking that he waxes nostalgic. Justice Thomas’ views are not representative of the current court but in recent years -in recent decades- the court has carved out a number of exceptions to the foundational rule of Tinker including in the Morse vs. Frederick case itself. I should say I’m calling it Morse v. Frederick but just about nobody calls it Morse v. Frederick. Instead, it’s routinely referred to by lawyers as “the Bong Hits 4 Jesus case”. That message was on a 14-foot-long banner that a high school senior in Juneau, Alaska unfurled from across the school as the Olympic torch made its way down glacier Avenue in Juneau, Alaska. The principal sees Joseph Frederick unfurl this banner, marches across the way, rips the sign out of his hand, and then suspends him from school. And the question is, does this violate his first amendment rights? The Supreme Court in a very odd opinion written by Chief Justice Roberts said that if the school believes that the speech is designed to promote illegal drug use, then it’s permissible to punish the student for that speech. And I say that’s unusual from a First Amendment perspective because it’s a hallmark of the freedom of speech that you’re supposed to be neutral with respect to viewpoint. You can’t silence pro-drug speech if anti-drug speech is permissible because the marketplace of idea, you should allow people to have their say. Justice Stevens wrote a really important dissenting opinion in this area. He was quite elderly at the time. And he said that he could remember prohibition, and that we should in effect view Joseph Frederick, as attempting to participate, however, inarticulately, in a growing debate about the legality of marijuana. And of course, he means by that, with respect to prohibition, that what is illegal today can become legal tomorrow. And of course, 11 years have passed since the “Bong hits 4 Jesus” decision and Justice Stevens’ dissent assumes only added significance and force.

Will Brehm 18:07
Do you think that the “Bong hits 4 Jesus” ruling would be overturned in this new era where marijuana is becoming increasingly legalized?

Justin Driver  18:16
It’s a good question. The court is typically reluctant to reverse itself and to overturn precedents. I do, however, hope that the Supreme Court will demonstrate renewed interest in vindicating students’ speech. The Roberts Court has a reputation as being a staunch defender of the freedom of expression. Indeed, some people think it’s rather too enamored of the freedom of speech and identifies infractions where they don’t properly belong. But one major area where it has failed to vindicate free speech rights is students’ speech. And so, I do hope that the court would be willing to revisit Morse v. Frederick and also build on Tinker. Let me give you an example. You know, the Tinker case, the rule that emerged from that was that if teachers have a reasonable forecast of a substantial disruption then it’s permissible to punish students for speech. But the problem with that rule is that it reads in what might be regarded as a “hecklers veto”. This is a term that first amendment mavens use to describe when particularly sensitive listeners can, if they object vociferously enough to the speech, decide to silence speech. And so, we see many of these cases where students grow upset and they can threaten their classmates and rather than talking to the folks that are threatening violence or unrest, instead, too often, in my view, school officials silence the speech. And so, I find that a distressing development and I do hope that the court will revisit this issue.

Will Brehm  20:15
Yeah, it’s so fascinating that even today, it seems like constitutional rights literally stop at the schoolhouse gate. That children, that young adults, are viewed fundamentally different as citizens, right? They don’t have the same necessarily constitutional rights as adults, for instance. And I guess, for me, what’s so interesting is that the issue of race in your book sort of cuts across all of the different cases that you profile, that you go through in such great depth. And, in a sense, this idea of separate but equal from Plessy v. Ferguson and the idea that you don’t want this interracial mixing going on because maybe children are seen as innocent and, you know, corruptible and mixing races is going to have some sort of negative outcome. That seems to be a recurrent theme over many different cases. And of course, the big case that people probably always associate with education is  Brown v. the Board of Education. So, can you talk a little bit about what did Brown v. Board of Education actually do? And maybe more importantly, what didn’t it do?

Justin Driver  21:29
Yeah, it’s a great question. Brown v. Board of Education is the most widely celebrated opinion. Today, Judge Kavanaugh, during his confirmation hearings said that he thought that Brown v. Board of Education was the most important decision in the Supreme Court’s history. More important than Marbury v. Madison in an important early case dealing with judicial review. But even though everybody sort of knows Brown, people have widely different views about what the opinion actually held. So, this is a case from 1954 dealing with racial segregation by law in the nation’s public schools. There are 17 different states that require Jim Crow and another four states that permitted Jim Crow, including Topeka, Kansas. And so Chief Justice Warren writes a unanimous opinion, saying that in the realm of education separate is inherently unequal. But the question becomes exactly as you suggested, Will. What does Brown mean? Does Brown nearly forbid segregation? Or does Brown require integration? And so, the decision itself set off a fierce debate to control the meaning of Brown and ultimately, it’s my argument that I advanced in the book that the erstwhile segregationist successfully claimed the mantle of Brown.

Will Brehm  23:09
How so?

Justin Driver 23:10
So, in 1956, Senator Sam Ervin of North Carolina helped to mastermind a document called the Southern Manifesto. Senator Ervin was a graduate of Harvard Law School and a former Justice on the North Carolina Supreme Court. He was quite legally sophisticated and also a staunch segregationist. And he said -right around the time of the Southern Manifesto, which was a document that said that Brown was wrongly decided- he made a public statement where he argues, “Brown is a deplorable decision and it’s also not as drastic as people think”, he says. And so, over time, he eased away from the first part of that construction, that it was deplorable, and said, it’s not as drastic as people think, meaning that he contended, Brown does not require integration. And indeed, over time beginning in the 1960s, he would say that Brown, properly understood, forbids the efforts of school districts to require integration. And that is an argument that ultimately carried the day in a case called Parents Involved in Community Schools from 2007 which was decided when I was a law clerk at the Supreme Court for justice Breyer.

Will Brehm  24:39
And what did that ruling state?

Justin Driver  24:41
So, in Parents Involved, the court considered plans out of Louisville, Kentucky, and Seattle, Washington. They wanted to have greater amounts of racial integration than would flow from assigning people simply to their neighborhood schools. They say we have racially diverse cities, but our schools are racially isolated. And so, in order to make sure that the schools are reflective of the greater racial diversity than we have in our cities, we’re going to take account of race in order to bring about racial integration. Chief Justice Roberts writes an opinion that effectively claims the mantle of Brown and says that it forbids these sorts of programs. He says that Brown invalidated regimes that told students where they could go to school based on the color of their skin. These programs in Louisville and Seattle tell students where they can go to school based on the color of their skin. It matters not one wit, for constitutional purposes, according to Chief Justice Roberts that the programs in the modern era were designed to bring people together and that in the Jim Crow era, they were designed to keep people apart, and indeed keep racial minorities subordinate.

Will Brehm  25:57
It reminds me of the book, ‘Through the Looking Glass’. It’s like everything is turned upside down. You know, like, how did we go from seeing Brown -as celebrating Brown to reintegrate schools, to get rid of segregation- to having, in 2007, a Supreme Court Justice, use Brown to argue, basically, segregated schools. As so many students today know -I mean, even myself. I went to school in the US and I’ve seen so many public schools that were either 99% minority students, or 99% white students, and it’s so obvious that schools are so segregated today in America.

Justin Driver  26:42
Yeah, it’s it was a very upsetting decision for me, when I was a law clerk to Justice Breyer and Justice Breyer wrote a very long and in my unbiased view, wholly, convincing, dissenting opinion, where he says that it is a cruel distortion of history to compare Topeka, Kansas of the 1950s to Louisville and Seattle of the modern era and he offered what we could think of as an integrationist conception of the reconstruction amendments. Unfortunately, though Justice Breyer’ opinion did not carry the day.

Will Brehm  27:19
Well, Justin Driver, thank you so much for joining FreshEd. It really was a pleasure of talking today.

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