Schooling as Uncertainty
Schooling as Uncertainty
The Minneapolis police officer who kneeled on the neck of George Floyd and killed him was training new recruits. One of the trainees was on his third day on the job. That got me thinking: How are police trained? What type of education do police officers receive? And are there any connections between type and quality of education and training to the excessive police force so common in black communities?
My guest today is Gary Cordner, a retired professor and dean, former police officer and former police chief. Most recently he served as Chief Research Advisor for the National Institute of Justice in the U.S. Department of Justice. He has actively studied and written about community policing, police administration, police agency accreditation, and police education. We spoke last week on a range of issues including structural racism and the prospects of defunding the police.
Citation: Cordner, Gary, interview with Will Brehm, FreshEd, 202, podcast audio, June 15, 2020. https://www.freshedpodcast.com/garycordner/
Transcript, translation, and resources:
Over 500 people were murdered in Chicago last year. Most of these murders were concentrated in a few historically black neighborhoods on the West and South sides of the city. And most of the victims were under 30 years old.
For many people listening to this show in the comfort of their home or car or while at the gym, it’s probably difficult to grasp what such a high rate of murder and violence does not only to those involved but also to the wider community.
In some of these Chicago neighborhoods, the impacts from violence have been compounded by a raft of school closures. A WBEZ Chicago report found since 2002 over 70,000 children – “the vast majority of them black — have seen their schools closed or all staff in them fired.” In 2013 alone, 50 schools were closed, which was the largest intentional mass school closing in recent history.
My guest today is Tio Hardiman, president and founder of Violence Interrupters, Incorporated and an Adjunct Professor of Criminal Justice. Tio is on the front lines of conflict resolution, restorative justice practices, and community organizing. He has seen what violence does to a community and the way it impacts and is impacted by schools. In our conversation, we talk about the history of violence in Chicago and what this means for children today.
Today we look at the power of Participatory Action Research in public science. My guest is Michelle Fine. In the 1990s, she worked on a study called Changing Minds, which looked at the impact of college in a maximum-security prison. The research team comprised of women in and outside of prison.
For Michelle, participatory action research plays an important role in the struggle for social justice. It not only can change legislation, impact critical social theory, and mobilize popular opinion for educational justice; but seemingly small issues can also have deep and lasting implications.
Michelle Fine is a Distinguished Professor at the Graduate Center at the City University of New York where she is a founding member of the Public Science Project.
Citation: Fine, Michelle, interview with Will Brehm, FreshEd, 137, podcast audio, November 26, 2018. https://www.freshedpodcast.com/michellefine/
Transcript, Translation, Resources:
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.
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
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.