The
Schoolhouse Gate:
Public
Education, The Supreme Court, and the Battle for the American Mind
by Justin
Driver
Review by
Dave Gamrath
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.