Teaching Our Kids Constitutional Values By Example
Review — The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind, by Justin Driver
The schoolroom is the first opportunity most citizens have to experience the power of government…. Through it passes every citizen and public official, from schoolteachers to policemen and prison guards. The values they learn there, they take with them in life.
— U.S. Supreme Court Justice John Paul Stevens, quoted in Justin Driver’s The Schoolhouse Gate
Lessons in liberty
Imagine your household is a very small country, where the adults govern and the children are governed. To clarify the rules, you decide to draft a constitution. How do you allocate power between governors and governed? Is there a bill of rights? Are the kids entitled to notice and hearing, freedom from cruel or unusual punishments, and privacy? Can they speak their minds or remain silent if they wish?
In their governing documents, a single neighborhood of these family “nations” would probably come up with a wide spectrum of core principles, from authoritarian to free-range parenting styles. On certain “global” issues where households coordinate, some of their value systems about how to govern (i.e. raise) children may turn out to be incompatible, even in relatively homogenous communities.
Public educators understand this challenge all too well. Late last year, school administrators in West Point, Virginia — where fewer than 4,000 people live — told a teacher that he had to use the preferred pronouns of a transgender student in ninth grade. When the teacher said he wouldn’t do that because it was inconsistent with his religious beliefs, the school board fired him for insubordination.
It was not a popular decision. Students walked out of school, local churches organized in support of the teacher, and national groups flooded administrators with criticism. But board members also received letters of gratitude for protecting marginalized students and respecting their dignity.
Adults haven’t historically been inclined to recognize children’s prerogative to challenge authorities, particularly at school. But in the last century, federal courts have haltingly, reluctantly acknowledged that students don’t “shed their constitutional rights … at the schoolhouse gate,” as the U.S. Supreme Court once put it. The notion that public education implicates fundamental rights led to what may be the Court’s best-known opinion in Brown v. Board of Education, which held that schools officially segregated by race are unconstitutional.
In an ambitious new book, The Schoolhouse Gate, University of Chicago law professor Justin Driver claims that, despite the hesitance of the Court’s foray into this area, public schools are “the single most significant site of constitutional interpretation within the nation’s history.” Over the past century, students have sued their schools for censoring and punishing political ideas, selectively promoting religious beliefs, imposing arbitrary suspensions and corporal punishment, discriminating against marginalized students, conducting unreasonable searches and seizures, and coercing incriminating statements to police. But even with a few landmark cases vindicating student rights, Driver argues that the Court has too eagerly abdicated its responsibility to defend students from authoritarian practices, instead deferring such questions to the discretion of local officials.
Driver’s comprehensive account of how the Court has waffled on student rights challenges all of us to consider what a healthy juxtaposition of liberty and power looks like. When is it legitimate for one person to use her power to curtail another person’s liberty? It’s a question intimately familiar to most of us who’ve raised children. Indeed, the fundamental dilemmas the Court has wrestled with in education cases are often just scaled-up versions of what household “governors” navigate every day: How do you teach your kids to follow and become good leaders but also to oppose bad ones? How do you raise citizens who grow up to value both independent thought and communal interests?
These are difficult questions. Why should the nine justices of the U.S. Supreme Court determine the answers for all of us? The freedom to raise our children as we think best is itself a fundamental right, and generally we want the federal government to stay out of it — that is, unless it’s our own kids on the losing side of a local power struggle.
A short history of U.S. education
The idea that local schools might be expected to teach and operate by the values of the entire nation isn’t at all intuitive. How did we get here?
In colonial America, education was an almost entirely local endeavor, paid for by families but sometimes offered to poor children on a charity basis. Most schools were built and organized ad hoc by farming and settler communities, convening when agricultural seasons permitted. A primary focus of these local schools was moral and religious teaching; as in Europe, education was a priority for churches. (Colonial Massachusetts progressively required localities to establish schools in order to frustrate the “chiefe project of that ould deluder, Satan[:] to keepe men from the knowledge of the Scriptures.”)
But as the American electorate expanded in the republic’s early decades (and the First Amendment curtailed the political influence of churches), education transitioned to a civic endeavor, rather than a religious one. States took seriously the principles of the Constitution’s Preamble, and most had eliminated land-based voting restrictions by 1830. The intuitive connection between political participation and literacy was explicitly championed by each of the first four U.S. presidents, and as more states joined the union, early Congresses promoted public education nationally by conditioning various land grants on promises to fund schools.
Although almost half of the original 13 colonies included explicit education clauses in their state constitutions, the tax implications of these commitments sparked controversy from the start. Historian E.P. Cubberley described decades of political battle between “fanatic” supporters and “selfish” opponents of state-funded schools:
[T]o awaken the public conscience to the public need for free and common schools in such a democratic society as ours was the work of a generation. With many of the older citizens no progress could be made; the effective work everywhere had to be done with the younger men of the time. It was the work of many years to convince the masses of the people that the scheme of state schools was not only practicable, but also the best and most economical means for giving their children the benefits of an education; to convince propertied citizens that taxation for education was in the interest of both public and private welfare; to convince legislators that it was safe to vote for free-school bills; and to overcome the opposition due to apathy, religious jealousies, and private interests.
Some goals seem impossible until they’re achieved. In 1837, a third of Kentucky’s adult population could neither read nor write, and many citizens didn’t want the state to buy even dirt-cheap federal bonds if the deal was conditioned on school funding. Yet by 1850, Kentucky, as well as every Northern state and many Southern ones, had generally accepted that government should provide public education. States also gradually abolished tuition fees assessed to pupils’ parents, to make education truly free. As the idea of state funding took root, so did common educational standards that could be verified by the state and uniformly evaluated by the nation’s growing number of universities and colleges.
By 1919, when Cubberley published his treatise on U.S. education, states were no longer struggling with whether to administer universal primary education. They were exploring how to expand it and adapt it to social challenges like immigration, child labor, and learning disabilities. In the century since then, those efforts led to federal statutory regimes aimed at equal educational opportunities. The U.S. Department of Education now pursues that goal as a cabinet-level agency.
Today, Driver observes that “[o]n any given weekday, during school hours, at least one-sixth of the U.S. population can be found in a public school — making it easily the single largest governmental entity that Americans encounter for sustained periods on a near-daily basis.” Remembering the long and arduous battle for universal literacy in the young republic, the ubiquity and quality of schools in American communities is an incredible national accomplishment (even if there’s plenty of room for improvement). But the price we pay is federal oversight, occasionally by the Supreme Court.
Abuse of discretion
The concept of “standard of review” on appeal is familiar to lawyers and football fans. The standard says how much deference the original call should get on review. Why defer at all? Mostly to protect decision resources and to empower whoever has the most and best information about the disputed issue. As the Supreme Court readily reminds parties, it isn’t a panel of agency experts, or a personnel department, or a school board. When those entities are given responsibility to evaluate the facts in front of them and make a call, the Court has limited authority to substitute its own judgment. And with no power to enforce its own decisions, the Court’s political standing relies on self-imposed restraint.
In the earliest education cases, the Supreme Court saw no reason to interfere with state and local discretion over how to implement a community’s educational goals for its children. Even today, we often think of schools more like the benevolent dictatorship of parenthood itself, and less like the tyranny-prone government from which the Constitution protects us. But in the handful of cases where the Court ultimately vindicated student rights, there was a sense that local authorities had abused their discretion to manage a particular power disparity in the community, allowing a majority group to overexploit its advantage over others.
The Court forged this path for the first time in the midst of World War II. In West Virginia State Board of Education v. Barnette, two sisters— the only two Jehovah’s Witnesses at their school — had been expelled for declining to salute the flag and recite the pledge of allegiance, due to their religious beliefs. West Virginia’s pledge requirement intersected with its delinquency laws to extreme results: The state could remove expelled children from their homes, and their parents could be fined and prosecuted for child neglect. In short, the state threatened a religious minority with devastating consequences for not speaking.
The Court opined that students won’t understand what free expression really means if their schools don’t model it as a value:
[W]e are dealing with a compulsion of students to declare a belief. They are not merely made acquainted with the flag salute so that they may be informed as to what it is or even what it means. The issue here is whether this slow and easily neglected route to aroused loyalties constitutionally may be short-cut by substituting a compulsory salute and slogan….
Boards of Education … have, of course, important, delicate, and highly discretionary functions, but none that they may not perform within the limits of the Bill of Rights. That they are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes….
About a decade later, the Court decided Brown v. Board of Education and again ventured a dire prediction about adult citizens who were once oppressed students. The justices concluded that state efforts to equalize separate schools didn’t mask the ugly reason why children were being segregated in the first place. Children made to feel inherently inferior by government policy, the Court said, may well carry that sense their whole lives.
Where Brown was controversial, the Court’s position on religion in schools — staked out in two cases in the early 1960s — was profoundly unpopular. Engel v. Vitale held that New York government officials had run afoul of the First Amendment by crafting a non-denominational prayer to start each school day. This conclusion shocked many Americans who viewed their Christianity as part of their national identity; 80 percent approved religious observance in schools. In the week following the Engel decision, the plaintiffs — including both devout Jewish and non-religious families — received more than 8,000 threatening phone calls at their homes. But the Court never backed away from its reasoning in Engel: “When the power, prestige and financial support of the government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain.”
Not long after Engel, when public support for U.S. military involvement in southeast Asia was still high, the Court again affirmed students’ First Amendment rights, this time addressing black armbands worn to school in silent protest of the Vietnam conflict. In Tinker v. Des Moines Independent Community School District, the Court inferred that the protesting students were punished for expressing a viewpoint the school disfavored:
[T]he action of the school authorities appears to have been based upon an urgent wish to avoid the controversy which might result from the expression, even by the silent symbol of armbands, of opposition to this Nation’s part in the conflagration in Vietnam…. [T]he school authorities did not purport to prohibit the wearing of all symbols of political or controversial significance. The record shows that students in some of the schools wore buttons relating to national political campaigns, and some even wore the Iron Cross, traditionally a symbol of Nazism. The order prohibiting the wearing of armbands did not extend to these. Instead, a particular symbol — black armbands worn to exhibit opposition to this Nation’s involvement in Vietnam — was singled out for prohibition.
In each of these cases, the Court emphasized the fundamental importance of education but refused to acknowledge it as a fundamental right. In 1982, the justices again stopped short of endorsing that notion but still struck down a Texas school board’s $1,000 fee for undocumented pupils, who represented less than one percent of the school system’s student population. In Plyler v. Doe, five children from a family of undocumented immigrants had been turned away from school because their parents— like most — couldn’t afford thousands of dollars in annual school fees. A bare majority of the Court reiterated Brown’s logic that such policies of exclusion severely burden vulnerable groups, in this case potentially creating a “shadow population” of illiterate resident aliens.
The Court’s slow-moving collision with public schools shows how the rule of law can either compound or confound existing power concentrations in society. The Schoolhouse Gate brings this story to life with polling, op-eds, and legal scholarship springing from each major case, showing how the rulings were viewed by those who would have to live with them. Ideally, the village cooperates to raise healthy children. But even within a single community, people in a free society disagree strongly about whether the existing balance of power is reasonably fair and meritocratic, or whether it instead reflects metastasized natural disadvantages. This disagreement, in turn, informs perspectives on child development. What seems like creativity to some is subversion to others. Critical thinking may look like disrespect; diversity seems like disruption, discipline like abuse.
Sometimes the justices must decide who’s right. But usually they’d rather not.
The “Education Justice”
After the Brown ruling in 1954, many Virginians supported an official state policy of “massive resistance” to desegregation, preferring to close all-white schools rather than see them integrate. At the time, the chairman of the Richmond Public School Board was Lewis F. Powell Jr., who would go on to become a justice of the U.S. Supreme Court in 1972. The 4th U.S. Circuit Court of Appeals building in Richmond is now named for him.
Powell, who disagreed with Brown’s sweeping ruling but also opposed “massive resistance,” is a recurring character in Driver’s story of education rights. In Richmond, he worked quietly with civil rights leaders and ultimately moved from the city school board to the state board of education, where he was instrumental in adding education to the Virginia Bill of Rights. The final constitutional language, wrote his biographer, John C. Jeffries Jr., could fairly be described as Powell’s “personal creed”:
That free government rests, as does all progress, upon the broadest possible diffusion of knowledge, and that the Commonwealth should avail itself of those talents which nature has sown so liberally among its people by assuring the opportunity for their fullest development by an effective system of education throughout the Commonwealth.
But on the Court, Powell’s school board experience buttressed his ideological skepticism of federal intervention in local matters, and he laid the legal foundation for courts to recede from school affairs after Brown. Yet he’d also seen up close how local authorities can actively work to deprive vulnerable populations of the fundamental asset of education.
In Powell’s first year as a justice, he authored the Court’s 5–4 opinion denying students’ right to equal education resources. In San Antonio Independent School District v. Rodriguez, a group of families challenged the use of local property taxes to fund schools. That system ensured that wealthy children would have more teachers and counselors who were better credentialed and better paid — meaning small classes and better instruction, the plaintiffs claimed. But Powell’s opinion said the case offered no evidence that the schools in poor neighborhoods were providing an education that was in fact inadequate, even if it was unequal. To assess the adequacy or quality of education, Powell said, judges would have to determine with some precision what the goals of education are — a hotly-debated political question inappropriate for the courts.
In other cases, Powell also rejected the idea that students and schools have critically diverging constitutional interests. In Goss v. Lopez, five justices said that, after an organized student event turned chaotic, the school had deprived students of due process by imposing more than 80 suspensions en masse with no opportunity for hearing. Powell dissented, protesting that the interests of teachers and students actually align. They don’t have the adversarial posture for which constitutional due process requirements were designed, he said. If students even had an educational interest at stake, Powell argued, it would include discipline:
Education in any meaningful sense includes the inculcation of an understanding in each pupil of the necessity of rules and obedience thereto. This understanding is no less important than learning to read and write…. When an immature student merits censure for his conduct, he is rendered a disservice if appropriate sanctions are not applied or if procedures for their application are so formalized as to invite a challenge to the teacher’s authority — an invitation which rebellious or even merely spirited teenagers are likely to accept.
The lesson of discipline is not merely a matter of the student’s self-interest in the shaping of his own character and personality; it provides an early understanding of the relevance to the social compact of respect for the rights of others.
Implicitly criticizing Tinker’s protection of silent protest, Powell quoted from its dissent: “School discipline, like parental discipline, is an integral and important part of training our children to be good citizens — to be better citizens.” For the vast majority of “average, normal” students, suspension was not a detriment at all, the erudite Powell speculated oddly. Yet education is an honorable calling “that has left for most of us warm memories of our teachers.” True injustices, he surmised, are rare and “will usually be righted by informal means.”
In Powell’s biography, Jeffries observed that for Powell, “the neighborhood school epitomized the values of community, of belonging, of cooperation in a common endeavor for the public good… a fine thing for those with good schools in decent neighborhoods.” (Ironically, Powell’s own children attended private schools even as he served on Richmond’s school board.) In The Schoolhouse Gate, Driver is utterly unpersuaded of how Powell reconciled his conception of schools with the Constitution: “The more exalted the role of teachers and schools in our society, the more serious and grave the decision to suspend students becomes.”
Powell’s rosy view of school discipline was mightily challenged two years after Goss in a brutal case involving corporal punishment. But Powell doubled down, this time writing for a five-justice majority in Ingraham v. Wright that a student who required multiple hospital visits after his principal severely beat him had suffered no constitutional injury. Students, Powell said, don’t need the protection of the Eighth Amendment’s prohibition on cruel and unusual punishments:
It would be anomalous, [the plaintiffs] say, if school children could be beaten without constitutional redress, while hardened criminals suffering the same beatings at the hands of their jailers might have a valid claim under the Eighth Amendment. [But t]he prisoner and the school child stand in wholly different circumstances, separated by the harsh facts of criminal conviction and incarceration. The prisoner’s conviction entitles the State to classify him a a “criminal,” and his incarceration deprives him of the freedom to be with family and friends and to form the other enduring attachments of normal life….
The school child has little need for the protection of the Eighth Amendment…. Except perhaps when very young, the child is not physically restrained from leaving school during school hours; and at the end of the school day, the child is invariably free to return home. Even while at school, the child brings with him the support of family and friends, and is rarely apart from teachers and other pupils who may witness and protest any instances of mistreatment. The openness of the public school and its supervision by the community afford significant safeguards against the kinds of abuses from which the Eighth Amendment protects the prisoner.
For Powell, it was crucial that state tort law already provided a remedy for excessive discipline, and the school’s policy said teachers had to bear their own liability for inflicting actual injuries. Ingraham’s bare majority agreed that the Court should avoid reading the Constitution in a way that forces it to resolve controversies best addressed through local politics — such as whether corporal punishment is an acceptable means of child discipline.
Since Ingraham declared beating students a local issue, Driver’s description of its continued use in certain parts of the country is the most disturbing revelation in The Schoolhouse Gate. In 19 states, it’s still legal to use physical punishment as school discipline. Although actual use is waning, Driver makes a compelling case that the practice creates unacceptable opportunities for abuse. At the time that Ingraham was decided, many school districts were very much still struggling to desegregate (either voluntarily or involuntarily), and Driver cites evidence that corporal punishment was used disproportionately to humiliate newly-integrated black children. The practice also has undeniable sexual connotations, especially for older female students. Driver relates a 2004 episode in which an 18-year-old high school senior refused to submit to a paddling for alleged tardiness. School staff ignored her request to be suspended instead, ultimately holding her struggling body down so that her male principal could deliver blows to her rear unimpeded. As of the Court’s last word on the subject, the Constitution has nothing to say about this.
After corporal punishment, the second-most misguided area in Driver’s estimation is the Court’s jurisprudence on students’ right to privacy. In his view, the justices erred badly in New Jersey v. T.L.O., a 1985 case vindicating a principal who rummaged through a student’s purse and found drugs. In its ruling, the Court reversed the state supreme court’s opinion that the search was unreasonable and, as such, violated the student’s Fourth Amendment rights. Justice Powell concurred with the Court’s opinion that school staff don’t need probable cause to search students’ belongings, again insisting that teachers aren’t like other government agents:
The special relationship between teacher and student also distinguishes the setting within which schoolchildren operate. Law enforcement officers function as adversaries of criminal suspects. These officers have the responsibility to investigate criminal activity, to locate and arrest those who violate our laws, and to facilitate the charging and bringing of such persons to trial. Rarely does this type of adversarial relationship exist between school authorities and pupils. Instead, there is a commonality of interests between teachers and their pupils. The attitude of the typical teacher is one of personal responsibility for the student’s welfare as well as for his education.
We can only wonder whether Powell, who retired in 1987, would have maintained this mentality as drugs, and then guns, in schools became national issues, causing schools to adopt “zero-tolerance” policies and to delegate disciplinary issues increasingly to on-campus law-enforcement officers.
Viewed most charitably, Powell’s primary concern in the context of education was that public schools as an institution — one of the nation’s greatest triumphs — could be made ineffective by judicial micromanagement. The Constitution, Powell thought, isn’t a shortcut to address issues of local politics. After all, to the extent that courts rendered schools unable to maintain discipline and to otherwise respond to community wishes, parents could be expected to look elsewhere for the proper education of their children. Rightly or wrongly, this fear may have been what drove Powell to ignore disturbing outlier cases like Ingraham in favor of what he viewed as the “typical” school scenario. Supporting his approach is the number of education decisions during his tenure that split the Court five to four, giving a single individual — often Powell himself — enormous influence over every public school in the nation.
But seemingly absent from Powell’s view of the school environment is the Orwellian insight that power, even fairly earned, easily corrupts and naturally seeks to grow. What if oppression and abuse by local school authorities, though anomalous at the national level, reflects an extreme power imbalance at the community level? Driver’s extensive research behind the court filings in each case shows the stakes involved: Plaintiffs daring to take their schools to court were subjected to all manner of punishments from their neighbors, from malicious rumors to job insecurity to death threats.
But at least one school policy went too far even for Powell: the steep school fees for undocumented children in Plyler. As in other cases, Powell’s sensibilities there was ultimately dispositive (though hard-won by the Court’s more liberal justices). In most circumstances, he could have been expected to join Chief Justice Warren Burger’s opinion that the Court doesn’t have the authority to deploy the Constitution against whatever social problems legislatures fail to address. With Powell’s vote, that view would have prevailed, and Driver suggests that school systems across the country would likely have followed Texas’s lead to tragic consequences for untold numbers of children. But Powell saw the complete denial of education to such vulnerable children as distinct from the merely unequal education in Rodriguez. The Education Justice couldn’t abide it.
Do schools mitigate or entrench power?
How responsible are government entities for rectifying social inequities? This question gets to the heart of an ongoing national reckoning about what “liberty” means.
The understanding of liberty most associated with the Constitution as originally ratified sees government as the primary threat to freedom. But a more complex understanding of liberty recognizes that people can severely limit each other’s opportunities in life all on their own; e.g. discrimination in employment, banking, housing, healthcare, and of course education. Paradoxically, then, government can be a source of oppression but also a necessary mediator of power dynamics between individuals who inhabit the same community. The student-rights cases Driver catalogues in The Schoolhouse Gate all ask: When does the Constitution require that type of mediation?
The goal of keeping the Constitution above politics is laudable, but of course the document has never been remotely neutral. The delegates negotiating the constitutional text were clearly concerned about social and economic power dynamics amongst themselves that could foreseeably impair their own interests, even with fair democratic processes. The bicameral legislature, the electoral college, and most notoriously the three-fifths “compromise” were designed to prevent certain disparities in land and population from spiraling into oppression — whether or not the framers anticipated that other classes of people would demand similar solicitude in the future. Since then, tension between different views of freedom has really been about which power imbalances the Constitution should fairly be expected to address.
Almost 60 years after Powell departed the Richmond School Board, its schools are still de facto segregated, following decades of white flight to the suburbs in response to integration. (Efforts to integrate by busing were ultimately held unconstitutional.) While the city’s total population now includes about equal shares of white and black residents, only 9 percent of current RPS students are white. Recent audits have revealed dilapidated infrastructure and below-average test scores and graduation rates. Nearly a third of middle-school students were suspended at some point in 2017. Virginia’s regressive state education funding is lower for school districts with higher poverty rates. In Richmond‘s schools, the student poverty rate is 40 percent.
Virginia as a whole has followed a national trend of securitizing school facilities, in part through the addition of “school safety officers” who occupy a gray area between education and policing. Over the past five years, almost 3,000 children in Virginia were the subject of criminal complaints citing “disorderly conduct” at school. As the Commonwealth’s 2019 legislative session opened last month, its most junior lawmaker hoped to lower that number to zero.
Del. Jeff Bourne (D-Richmond) — who, like Justice Powell, used to chair Richmond’s school board — championed successful legislation last year that reduced the state’s maximum school suspension period from a full calendar year down to one nine-week grading period. This year, his priority was to prohibit disorderly conduct convictions of K-12 students for behavior that occurred in school or on school buses.“This is really the next step in trying to disrupt the school-to-prison pipeline,” he said. Echoing Justice Powell, proponents of the proposal say that student discipline should be in the hands of teachers and school administrators.
Each weekday, we entrust our children to the care of government employees, where they learn reading, math, science, and the nation’s values, especially those evident in its founding document. What do those values say about the difference between legitimate power and overreach? About when and how to resist people who claim the right to control you? Intentionally or not, public educators answer by example.