The Schoolhouse Gate:

Public Education, The Supreme Court, and the Battle for the American Mind

by Justin Driver

Review by Dave Gamrath

 

One-liner: 

The Schoolhouse Gate provides a rigorous review of the Supreme Court’s impact since ~1900 on America’s public schools, and how these rulings also impacted our constitutionality. 

 

Brief Review: 

In “The Schoolhouse Gate:  Public Education, The Supreme Court, and the Battle for the American Mind”, author Justin Driver provides a history of the US Supreme Court’s impact on America’s public schools.  The book details the key Supreme Court cases that, while addressing public schools, at the same time addressed key constitutional issues, such as patriotism and religion.  Driver argues that “the public school has served as the single most significant site of constitutional interpretation within our nation’s history” and provides many examples as to why he believes this true.  As Driver reviews key lawsuits, he provides a brief history and the factors on each side of the issue, the Court’s decisions and the resulting impact on our public schools.  Driver also details America’s reaction to the Court’s decisions, including reactions in the press, academia, and within political parties.  Driver then gives his own assessment of the decisions, providing the reader arguments as to why decisions were good or bad, and how the decisions fit with ongoing trends within the Supreme Court. 

 

Historically, the Supreme Court was very hesitant to enter the public education domain, but this changed in the 1900s.  As the Court has ruled on public education issues over the past one-hundred years, the Court has swung back and forth.  For example, the Court moved from rejecting petitions to end school segregation in the early 1900s, to ruling segregation as unconstitutional in 1954 with Brown V. Board of Education (but then sadly disengaged for many years from actually forcing desegregation to happen).  In 1925 the Court abolished state laws that actually required students to attend public schools, then eighty-seven years later flipped direction away from public schools to allow the use of school tuition vouchers for private schools, even religious schools.  The Court ruled in favor of student’s free speech with their Tinker decision in 1969, but then subsequently ruled multiple times to limit student first amendment free speech rights.  These are just some examples of how the Court’s rulings have often changed course, following public opinion and sadly the political make-up of the justices sitting on the court. 

 

Supreme Courts Moves to the Right

The Court has moved significantly to the right on public schools in recent decades, with rulings often being divided on conservative vs liberal lines in 5-4 votes.  This trend to the right accelerated with all four justices appointed by Richard Nixon repeatedly voted together as a bloc against allowing due process into public schools.  Since the late 1960s, the Court ruled that schools could inflict corporal punishment on students (what Driver terms as “permitting educators to beat their students”), ruled against students having Fourth Amendment rights against unreasonable searches, ruled against district desegregation orders, ruled in favor of mandatory drug testing, ruled to invalidate voluntary school district integration programs in Seattle and elsewhere, and ruled against more equitable school funding for poorer school districts.

 

Supreme Courts Moves to the Left

The Court has also ruled liberally at times in recent decades.  Examples include court rulings that schools could not remove pupils without giving them some modest procedural protections, ruled against strip searching students, ruled in favor of students Fifth Amendment rights against self-incrimination, ruled against intentionally gerrymandered school attendance zones in efforts to maintain segregated schools, and ruled against banning children of unauthorized immigrants from public schools.  The Court has also been consistent on ruling against forced religious practices in public schools, holding that it violates the Establishment Clause (the clause in the First Amendment of the US Constitution that prohibits the establishment of religion by Congress), even in the face of extensive criticism from a majority of Americans for these rulings.

 

Security at school has become a major concern in America.  Due to school shootings, recent times have seen police officers stationed at schools as routine.  Currently over 50% of high schools in the US employ nearly twenty thousand police.  On-campus police responsibilities often extend beyond law enforcement matters, assisting with keeping students “in line”.  With the rise of police has come a corresponding rise of student arrests, disproportionately of black students, and overwhelmingly from trivial offenses.  Driver provides the example of a fourteen-year-old girl being convicted of felony assault on a public servant and sentenced to prison for up to seven years for just shoving a school hall monitor.  Other hard-to-believe examples were given of extreme sentences for minor offences.  Driver describes these events as being part of the school-to-prison pipeline.  Even with the recent shootings, schools actually remain amongst the safest places for kids in our country, and a student remains more likely to die from a lightning strike than a Columbine-style massacre. 

 

In summary, the impact on Americans with the Supreme Court’s rulings on public schools has been immense.  The size of our public education system is tremendous and includes over fifty million students in primary and secondary schools, and millions of adults serving as teachers, administrators and other key school roles.  Most Americans are products of public schools.  The Schoolhouse Gate details how Supreme Court decisions impact our daily lives, and how politically ideological views very often drive how the Court’s justices vote.  The book provides a striking example of the critical importance that the selection of Supreme Court justices has on America.  This impact will only likely become stronger in the coming years.

 

Summary: 

Below are the specific cases that The Schoolhouse Gate discusses that have impacted public education and constitutionality.

 

Cumming V. Richmond County Board of Education:  this case was due to, in 1897, the local school board in Augusta, Georgia eliminating the area’s lone public high school for black students.  A unanimous Supreme Court decision found that this did not violate the Constitution.  Given the times, this decision did not generate much reaction.  High school graduation by students of any race back then was rare.  Augusta finally reestablished a high school for blacks in 1945.

 

Lum V Rice:  the dispute began in 1924 in Bolivar County, Mississippi, when a Chinese US born citizen, a nine-year-old girl, was not allowed to attend the all-white local school, and forced to attend a black school.  The suit did not attack racism.  Rather, it claimed that, as with Whites, Asians shouldn’t be forced into “repulsive” interracial contact with blacks.  In 1927 the Supreme Court ruled unanimously to not interfere with Mississippi’s race-based method of assigning students to schools, stating it did not conflict with the Fourteenth Amendment.  General reaction was muted. 

 

Meyer V Nebraska:  in 1919, Nebraska passed a law prohibiting the teaching of any class in a language other than English before the ninth grade.  A schoolteacher of German heritage broke this law in 1920 by teaching a class in German.  Post World War I, this was considered a threat to America.  By 1923, when the Supreme Court ruled on this case, at least thirty-three states had a similar law.  The Court ruled against school-based language prohibitions, though not unanimously.  This decision had both supporters and detractors throughout the country.  Author Driver states that this case was the “Court’s first consequential step in its path toward vindicating the rights of public-school students”. 

 

Pierce V Society of Sisters:  Oregon voters in 1922 voted to abolish private and parochial schools, requiring students from eight to sixteen to attend public schools.  The Court in 1925 unanimously voted to overturn this referendum, imposing a meaningful limitation on the state’s ability to control education.  Reaction was mostly positive. 

 

Farrington V Tokushige:  during the early 1920s, Hawaii introduced procedures to invalidate foreign-language schools, the most common being in Japanese.  In 1927 the Court rejected Hawaii’s efforts.  Many in the country condemned this decision. 

 

West Virginia State Board of Education V. Barnette:  strict Jehovah’s Witnesses, per their religion’s rules, are forbidden to pledge allegiance to anything other than God.  Thus, by this definition they could not recite the Pledge of Allegiance (to the US flag).  In 1942, two West Virginia school girls were expelled from school for their refusal.  The state deemed them unlawfully absent, threatened to send them to reformatories, and that their parents could be prosecuted for child neglect and jailed as well as fined.  In 1943 the Court declared this unconstitutional, reversing a Supreme Court decision from three years before.  This decision was not unanimous and included fierce dissent.  Driver states that this was the first decision of the Court to declare that the Constitution protects students within public schools. 

 

Tinker V. Des Moines Independent Community School District:  in 1965, a group of antiwar students conducted a protest at their schools by wearing black armbands.  This got them in trouble, so they sued.  The Court ruled in 1969 in support of the protesting students, embracing their right of free speech.  With Tinker, there was vehement dissent on the Court, and since this decision, the Court has ruled on three other decisions in opposition to free speech of students.  But there was much positive response to this decision within the country.  This decision is viewed by many as the “high-water mark” for students’ free speech rights in the Court.  Driver believes that the Court should have gone much higher still.

 

Bethel School District V Fraser:  this case began in Spanaway, Washington in 1983 when a high school senior and public-speaking champion gave a public endorsement at a school assembly that included extensive sexual innuendos (although no profanity), and then got suspended for his efforts.  In 1986 the Court decided that the suspension was valid and did not violate the student’s rights of free speech, since the speech was of a sexual nature.  The decision was not unanimous.  Newspapers generally agreed with the decision, as did then President Reagan.  Ironically, the speech was reprinted in entirety in many papers, including the school’s own newspaper. 

 

Hazelwood School District V Kuhlmeier:  in 1983, a high school principal in St Louis decided to censure the school’s newspaper by forcing it to drop articles he deemed too sensitive; one on students coping with divorce of their parents, and a second on teenage pregnancies.  In 1988, in a split decision, the Court found in favor of the principal.  Newspapers, understandably, responded negatively against the decision.  Ironically, the local newspaper in St Louis published both articles in their entirety. 

 

Island Trees Union Free School District V. Pico:  in 1975, in Levittown, New York, a school board official led the charge to remove books from the school’s libraries that he found unacceptable, including Kurt Vonnegut’s Slaughterhouse-Five.  In a 5-4 decision, the nine Court justices produced six different opinions, but basically determined that school libraries cannot banish books for overtly ideological reasons. 

 

Morse V. Frederick:  in 2002 in Juneau, Alaska, a high school senior had the clever idea for a banner for the passing of the Olympic torch through town.  The banner read “BONG HiTS 4 JESUS”.  He did this purposely to express his first amendment rights of free speech.  His banner got confiscated and the kid got suspended.  In 2007 the Court ruled in a 6-3 decision that the first amendment did not protect the student or the banner, even though it was displayed off school grounds, deeming the banner encouraged drug use.  Driver states that this decision is rare in that it pleased just about no one. 

 

Assessing free speech today (first amendment rights in public schools):  although the Court has handed students a series of defeats in this area since Tinker in 1969, Driver states that reports of Tinker’s demise have “been greatly exaggerated.”  However, Driver states that courts have erred with prohibitions of student free speech and believes that speech from students has much in common with speech from adults.

 

Goss V. Lopez:  in 1971 at a high school in Columbus, Ohio, students held a protest regarding lack of attention to Black History Week.  Officials at the high school suspended between 75 – 150 students.  In 1975, in a 5-4 decision, the Court upheld a student’s challenge to his suspension, upholding that schools could not remove pupils without giving them some modest procedural protections.  For the four judges that dissented, the dissent was vehement, stating that schools work best when schools have the authority to do what they deem best, without meddling from the courts. 

 

School suspensions and expulsions have dramatically increased in recent years.  Driver writes that in comparison to their peers, students that are removed from school experience long-range negative outcomes, including crime and incarceration.  Many in the black community view the suspension of minority students as in fact attempts to perpetuate a dual school system. 

 

Ingraham V. Wright:  In 1970 at a Miami middle school, a group of eighth grade students were leaving an auditorium stage at a leisurely pace.  When told to hurry up, and they didn’t do so to the satisfaction of a school official, they were sent to principal’s office for a paddling with a two-foot wooden paddle.  When one student refused to bend over, saying he was innocent, officials held him down and paddled him over twenty times, putting him in the hospital and out of school for two weeks.  The child’s family took this to court, saying that his Eighth Amendment’s rights of the government not being allowed to inflict cruel and unusual punishment on him were violated.  In 1977, in a 5-4 decision, the Court ruled that schools could inflict corporal punishment on students, what Driver terms as “permitting educators to beat their students.”  The Court ruled that corporal punishment on students did not constitute punishment as regarding in the Eighth Amendment, and that school officials are not required to afford students any due process prior to beating them.  The four liberal justices on the Court disagreed, as did most newspapers. 

 

Five southern states account for more than 70% of the country’s corporal punishment, and those states generally have a higher percentage of black students.  Nationwide, a survey in 2006 indicated support in the US of corporal punishment is less than one in four, and thirty-one states now prohibit it. 

 

New Jersey V. T.L.O.:  in 1980, a ninth-grade girl was caught smoking in a non-smoking area at her school.  When she denied it, her purse was searched and marijuana and related paraphernalia was found.  She was suspended and had state delinquency charges brought against her.  Her legal team fought back, saying evidence found in her purse violated her Forth Amendment rights against unreasonable searches.  The New Jersey Supreme Court agreed, but in 1985 the country’s Supreme Court did not, and in a 6-3 vote held that school officials could NEVER violate the Fourth Amendment, claiming that educators take the place of parents when kids are at school.  The Court deemed that the school need not have probably cause for a search, but just reasonable suspicion.  Driver states that this ruling allows schools to search students with just the slightest provocation. 

 

Board of Education V. Earls:  in a small town in Oklahoma in 1999, a top student had to pee in a bottle as part of a mandatory drug test for her participation in extracurricular activities such as the Academic Team and Marching Band.  This experience proved traumatic for her, and although her drug test was negative, she sued stating the test violated her Forth Amendment rights against unreasonable searches.  In 2002, the Court ruled against her 5-4, again following what had become Conservative vs Liberal member lines.  Driver states that our most reliable evidence indicates that drug testing does not reduce drug usage whatsoever.  Yet these drug tests in schools just keep expanding. 

 

Safford Unified School District V. Redding:  in 2003, in a small Arizona town, an eighth-grade honors student was accused by her classmate of giving her an 800 milligram Ibuprofen.  For this, the school strip-searched her, greatly embarrassing her, especially due to her being very self-conscious about being overweight.  Although the search found nothing, the girl soon developed ulcers and was traumatized by the event.  She sued.  In 2009, to the surprise of many, the Court found that the school violated the girls Forth Amendment rights in a vote of 8-1.  Media responded favorably.  The lone dissenting voter, Clarence Thomas, stated that students have no constitutional rights whatsoever against unreasonable searches.  Driver states that this decision marks the first and only time the Court has violated a student’s Forth Amendment rights. 

 

J.D.B. V. North Carolina:  in 2005, a seventh-grader in North Carolina was called to a conference room and interrogated by a local police officer about recent burglaries in the area.  The student confessed.  However, he wasn’t read his rights.  The Fifth Amendment protects against self-incrimination, and the student sued.  In 2011 the Court ruled 5-4 in favor of the student’s rights.  Newspapers generally agreed.  Driver calls this decision one of the “most unusual” Court decisions in recent memory, with the Court’s fixation on age and disregard to the school setting, I.E., how that formal setting puts unfair (and unconstitutional) pressure on a suspect.

 

Brown V. Board of Education:  in 1950 a railroad working in Topeka, Kansas took his seven-year-old daughter to the local grade school.  Kansas state law allowed local districts to segregate or integrate schools as they saw fit.  His daughter was rejected for being black, forcing her to go to the all-black school much farther away.  They sued.  In 1954, the Court voted unanimously that segregated public schools violated the Equal Protection Clause.  Many newspapers welcomed the decision, but not those in the South.  This decision left major questions regarding what the opinion actually prohibited.  The opinion watered-down its condemnation of Jim Crow.  In 1954, only twenty-one states either required or permitted racial segregation.  About a year after the decision, in 1955, the Court issued “Brown II” to clarify how the decision would be implemented, and stated not that desegregation must occur “now”, but rather “with all deliberate speed”, which was a major setback in achieving desegregation.  President Eisenhower was not opposed to segregation and stated about Southern whites “all they are concerned about is to see that their sweet little girls are not required to sit in school alongside some big black bucks.”  The crux of white opposition to desegregation was a fear that integrating classrooms would lead to integrated bedrooms, and a fear of “mongrelization.”  After issuing Brown II, the Court disengaged from this issue for the next thirteen years.  It wasn’t until 1968 that the Court took further steps to achieve desegregation. 

 

Swann V. Charlotte-Mecklenburg Board of Education:  in 1964, a six-year-old black student was denied admission to his local school in Charlotte, which was next to a university and a high-quality school.  Rather, the student was to be bused.  Busing was already prevalent in the county, and opponents of the busing order generally framed their opposition in nonracial terms, focusing on the hardship on the kids being bused.  In 1970, Nixon wrote his opposition to expanding efforts to desegregate schools.  The Court ruled in 1971 unanimously pro-desegregation, and emphatically refused to invalidate the practice of busing, but at the same time did not mandate busing to achieve desegregation throughout the country. 

 

In 1969 more than 40% of whites asserted that blacks had a better chance of securing well-paying jobs and good educations for their kids than did whites.  At that time, whites made up 90% of the US population.  A poll in 1971 found that 76% of the country opposed busing.  As Nixon appointed new justices, hope increased for an end to mandated busing. 

 

Keyes V. School District No. 1, Denver, Colorado:  in 1971 the Court found Denver liable for its racially isolated schools in a 7-1 vote, saying the school board had intentionally gerrymandered attendance zones in efforts to maintain segregated schools.  Conservative Justice Lewis Powell promoted the adoption of a nationwide rule that would have required, under the Constitution, schools to pursue integration.  However, his fellow conservative judge William Rehnquist became the first Supreme Court judge to file a written dissent in a case involving race since the Brown decision.  Rehnquist’s position put him even to the right of Barry Goldwater. 

 

Milliken V. Bradley:  in 1974 the Court ruled on a case brought by a black student against the racially isolated Detroit schools.  Michigan state courts supported the student’s case.  However, Nixon’s four Court appointees voted in unison and won a 5-4 decision against Detroit’s inter-district desegregation order.  This decision drew strong dissent for the four opposing judges. 

 

Parents Involved in Community Schools V. Seattle School District No. 1:  in 1999, the mother of an eighth-grader participated in Seattle’s then new procedure for choosing a school, a system that let students rank their school preferences.  Their first choice was their local (and new) Ballard High School.  They were aghast when they were put in their forth choice, rundown Franklin.  This mom then formed a new group that filed a lawsuit against what she called the district’s “racist policy”.  In 2007, the Court ruled in a 5-4 decision in favor of mom’s group, invalidating voluntary integration programs in Seattle and elsewhere.  The four liberal members of the Court dissented.  Liberal Justice John Paul Stevens wrote “that no Member of the Court I joined in 1975 would have agreed with today’s decision”, implying just how far the Court had moved to the right on racial issues. 

 

Assessing Brown’s Legacy:  Driver states there is ample reason for pessimism about progress against racial isolation in the country’s public-school systems.  Throughout the country, more than one-in-three blacks attend schools composed of at least 90% minorities; in the Northeast US, it’s two-out-of-three black kids in this situation.  On the 50th anniversary of Brown, Newsweek called the decision “something of a bust”.  But Driver points out that the most important accomplishment of Brown was the elimination of official regulations prohibiting students of color from attending public schools with white kids.  And Driver states that Brown was a needed precursor to the Civil Rights Act of 1964.

 

San Antonio Independent School District V. Rodriguez:  in 1968, in a poor neighborhood of San Antonio, a Latino worker at a local Air Force base was upset that his kid’s local school was vastly underfunded compared to average students in town, due to discrepancies in property taxes.  He sued.  In 1973, the Court, in a 5-4 decision, rejected this contention that the Texas system of school financing violated the Constitution.  All four on Nixon’s appointees voted with this decision.  Justice Powell wrote that local control over school funding was paramount.  Justice Thurgood Marshall denounced the decision as a betrayal to Brown.  But newspaper boards across the spectrum commended the decision.  Driver writes that if this issue were to reach the Supreme Court today, it’s plausible that not a single justice on the Court would agree that the Constitution prohibits arrangements such as those that existed then in San Antonio, due to the right movement of the Court.  But these types of challenges have found more friendly responses in state supreme courts.

 

Vorchheimer V. School District of Philadelphia:  in 1974, a standout ninth-grader, who happened to be a girl, wanted to attend what was considered to be the best school in Philadelphia, which happened to be an all-boys school.  She was denied, and sued, subjecting her family to an abundance of abuse.  In 1977 the Court deadlocked at 4-4 on the case (Justice Rehnquist for some reason recused himself), thus upholding the lower court’s finding that was against the student.  However, in 1983 a Pennsylvania state court invalidated the school’s male-only policy.  By 1995, only three single-sex public schools existed in the entire country.  But this trend has been reversed, and by 2005 thirty-four existed, and by 2014 over 850 existed.  This trend goes in the face of public polling which shows about three-quarters of the country is against same-sex public schools.  One expert wrote “Sex segregation appears to be the remedy for what ails public schools peopled…by low-income students of color.”

 

Transgender students and access to restrooms:  Driver calls this perhaps the single most polarizing education case that the Supreme Court has agreed to address in recent years.  But the Trump administration rescinded the Obama administration’s guidance on the issue, leading to the Court remanding the case back to the lower courts.  Driver estimates that there are between 165,000 to 555,000 transgender students attending primary and secondary schools in the US, I.E., this is an important issue.

 

Plyler V. Doe:  in 1975, Texas decided to ban the children of unauthorized immigrants from public schools, stating they were a burden on the community.  An immigrant in Tyler, Texas joined with three other families to sue, pointing out that unauthorized immigrants accounted for only 24 of 16,000 students in the district.  The Federal Court favored them and demanded the excluded students be readmitted.  In 1982, the Supreme Court agreed in a 5-4 decision.  Driver writes that it would be difficult to find many opinions in the entire history of the Supreme Court that have had more profound consequences.  During deliberations, Justice Rehnquist referred to the unauthorized immigrants as “wetbacks”.  A young lawyer working for the Reagan Administration, future Chief Justice John Roberts, wrote a memorandum against the decision, pointing to things to come.  On the 25th anniversary of the decision, the then retired superintendent of schools admitted he was glad they lost, stating “it would have been one of the worst things to happen in education – they’d cost more not being educated.” 

 

Engel V. Vitale:  in 1958, a school board on Long Island, New York, voted to require teachers to open the school day by leading their students in a prayer that the Board of Regents had drafted.  One parent resisted, and sued, leading to intense hatred against their family, including death threats.  In 1962, the Court found in favor of the family, holding that the Establishment Clause (the clause in the First Amendment of the US Constitution that prohibits the establishment of religion by Congress) required the invalidation of the prayer.  Driver states that never before in the Court’s history had they come to a decision that drove such intense animosity.  Many thought this dramatic court overreach.  Disapproval was pervasive.  Even with this pressure, the Court has since refused to back down.

 

Abington School District V. Schempp:  in 1963 the Court invalidated state laws requiring the recitation of the Lord’s Prayer and verses to be read from the bible. 

 

Stone V. Graham:  in 1980, the Court in a 5-4 vote against a Kentucky statute mandating every public-school classroom to display a copy of the Ten Commandments. 

 

Lee V. Weisman:  in 1992, conservative justice Anthony Kennedy joined the Court’s four liberal justices in a 5-4 vote against a prayer at a graduation ceremony for a public school.  At first Kennedy was going to vote the other way, but then changed his mind. 

 

Santa Fe Independent School District V. Doe:  in 2000, the Court rejected a high school prayer policy for prayers before school sports games. 

 

Response to the Court’s decisions on religion in public schools:  The Court has stated that students need not shed their religious values/identities at the schoolhouse gate.  They allow “moments of silence” where students can pray as they wish.  However, recent times have seen a meteoric rise in home schooling, mainly for religious reasons.  In the early 1970s, only about 15,000 kids were home-schooled; this rose to 1.8 million by 2012.  Also, the Court validated the constitutionality of the use of school tuition vouchers for private schools, even religious schools, with their decision in 2002 in Zelman V. Simmons-Harris, in a 5-4 vote along party lines.  The Court also allows religiously-themed clubs at public schools. 

 

Reviewer Opinion: 

A good book with lots of important information, but a bit of a chew to get through.

 

Rating: 

Thumb sideways for the average reader, but thumb up for those with specific interest in education and our courts.