The Schoolhouse Gate

Description

A Washington Post Notable Book of the Year
A New York Times Book Review Editors’ Choice

An award-winning constitutional law scholar at the University of Chicago (who clerked for Judge Merrick B. Garland, Justice Stephen Breyer, and Justice Sandra Day O’Connor) gives us an engaging and alarming book that aims to vindicate the rights of public school stu­dents, which have so often been undermined by the Supreme Court in recent decades.
 
Judicial decisions assessing the constitutional rights of students in the nation’s public schools have consistently generated bitter controversy. From racial segregation to un­authorized immigration, from antiwar protests to compul­sory flag salutes, from economic inequality to teacher-led prayer—these are but a few of the cultural anxieties dividing American society that the Supreme Court has addressed in elementary and secondary schools. The Schoolhouse Gate gives a fresh, lucid, and provocative account of the historic legal battles waged over education and illuminates contemporary disputes that continue to fracture the nation.
 
Justin Driver maintains that since the 1970s the Supreme Court has regularly abdicated its responsibility for protecting students’ constitutional rights and risked trans­forming public schools into Constitution-free zones. Students deriving lessons about citizenship from the Court’s decisions in recent decades would conclude that the following actions taken by educators pass constitutional muster: inflicting severe corporal punishment on students without any proce­dural protections, searching students and their possessions without probable cause in bids to uncover violations of school rules, random drug testing of students who are not suspected of wrongdoing, and suppressing student speech for the view­point it espouses. Taking their cue from such decisions, lower courts have upheld a wide array of dubious school actions, including degrading strip searches, repressive dress codes, draconian “zero tolerance” disciplinary policies, and severe restrictions on off-campus speech.
 
Driver surveys this legal landscape with eloquence, highlights the gripping personal narratives behind landmark clashes, and warns that the repeated failure to honor students’ rights threatens our basic constitutional order. This magiste­rial book will make it impossible to view American schools—or America itself—in the same way again.  A Washington Post Notable Book of the Year
A New York Times Book Review Editors’ Choice

“The Schoolhouse Gate is the first book-length history of Supreme Court cases involving the constitutional rights of schoolchildren, a set of cases that, though often written about, have never before been written about all together, as if they constituted a distinct body of law.”
—Jill Lepore, The New Yorker

“Indispensable . . . bold and ultimately persuasive . . . astute . . . exquisitely well timed, given President Trump’s nomination of Brett Kavanaugh to replace Justice Kennedy. . . . Driver has performed a service in assembling the stories of so many important education cases in one encyclopedic, fair and elegantly written volume. It will remain on my desk for years to come.”
—Dana Goldstein, The New York Times Book Review 

“This meticulous history examines rulings on free speech, integration and corporal punishment to argue that schools are our most significant arenas of constitutional conflict.”
—New York Times Book Review, Editors’ Choice

“A masterful analysis of the Supreme Court’s role in public school students’ constitutional rights. . . . Driver’s book makes for especially timely and important reading.”
—Eloise Pasachoff, The Washington Post

“The involvement of the courts [in schools] is recounted in vivid detail by Justin Driver, who sets out to rescue them from the purgatory to which critics across the political spectrum have consigned them. Conservatives charge that the courts have engaged in “judicial activism” for progressive change, while frustrated liberals indict them for failing to promote it. . . . To Driver, the record is much more mixed than that: sometimes courts have lagged behind the rest of the country, but at other moments they have taken the lead. And they have helped expand the rights of American children, albeit unevenly and imperfectly. . . . [I]f you look at the long record of judicial intervention on matters of education, you see that the courts still matter for young Americans.”
—Jonathan Zimmerman, New York Review of Books  

“Engaging and absorbing. . . Driver . . . calls on schools to challenge the racial and economic inequality in the broader society. He has the audacity to contend that low-income, black, and brown children have an equal right to share space with more privileged students in a system of public education. Anything less would be undemocratic.”
—Richard D. Kahlenberg, The New Republic 

“Authoritative, original, and insightful . . . Driver brilliantly analyzes the Court’s precedent-setting cases involving public education and draws on his own personal experience to write with empathy and insight about the children and families involved in these legal dramas.”
—National Book Review

“Brilliant. . . . Fascinating. . . . Beautifully written. Professor Driver is a great storyteller. . . . Magnificent.”
—Erwin Chemerinsky, Michigan Law Review

“[R]efreshing, inspiring, and . . . audacious. . . . This book is an act of canon creation… Driver is not shy about this goal: he calls the public school ‘the single most significant site of constitutional interpretation with the nation’s history’ and makes a powerful case for that claim… The Schoolhouse Gate advances a full-throated account of the federal judiciary’s promise and a morally rich vision of constitutional law. . . . The Schoolhouse Gate presents a powerful argument not just for students’ rights but for a theory of constitutional rights that is attuned to the particular values and histories of American social institutions.”
—Emma Kaufman, University of Chicago Law Review 

“As Driver shows throughout, all Americans have a vested interest in what happens in our public schools. It is for that reason that this book is a must read not just for civil rights lawyers and law students, but for all who are involved in educating our children. It is poignant . . . sometimes funny . . . and always intellectually rigorous. In short, it is a powerful book that is needed now, as we grapple with the role and legitimacy of the Supreme Court.”
—Harvard Civil Rights-Civil Liberties Law Review

“Driver is an unabashed liberal who thinks the American judiciary has failed . . . . But The Schoolhouse Gate is a valuable volume even for those who do not share Driver’s politics. The book is a useful compiling of the school cases that have been the arena for much of our national discussion about religion, free speech, race, and privacy over the past hundred years. . . .  Always, somehow, our concerns about the clash of public order and individual rights become most pointed when the location is the American schoolhouse.”
—Joseph Bottum, The Washington Free Beacon
 
“An important and delightfully crafted book.”
—William Baude, The Volokh Conspiracy

“Deeply important.”
—Neal Katyal, Michigan Law Review

“Brilliant.”   
—LA Daily Journal

“Important.”
—Gregg Easterbrook, The Weekly Standard

“Engaging. . . . Ambitious. . . . Accessible. . . . Excellent.”
—Shelf Awareness

“It seems that no one has tried to put together a comprehensive look at what the Supreme Court has said about school integration and students’ rights of free expression and the interface between religion and education and other Bill of Rights protections in the school setting. That is what Mr. Driver has now accomplished. . . . [H]e very properly faults the justices for not moving more aggressively to end corporal punishment in schools and to limit the use of drug tests and of physical searches of students and their possessions.”
—The Washington Times

“In The Schoolhouse Gate, the University of Chicago law professor casts a critical eye on the Supreme Court’s decisions—and its inaction—on issues governing public schools.”
—Slate

“[E]pic. . . . Driver’s book is informative, incisive, and educational. He writes that one of his goals in writing the book is to ‘reinvigorate education law as a field of intellectual inquiry.’ He has surpassed that goal and so much more with his landmark work.”
—David L. Hudson, Jr., First Amendment News

“The topics are thoughtfully organized and presented in a style that is precise enough for lawyers while remaining lively for educators and concerned parents, always keeping in view the human stories behind the landmark cases. One of Driver’s major concerns is that students will get early and vivid impressions of their rights as citizens from their treatment at school, and he often finds that treatment wanting. Thorough, accessible, and always relevant, this is a valuable service and reference for legal practitioners, educators, parents, and citizens concerned about constitutional rights in the context of public education.” 
—Kirkus Reviews

“Driver… examines the intersection of the Supreme Court and the public school system in this scrupulous study of two vital American institutions. Driver smartly analyzes how the Constitution applies to disciplinary actions, free speech, prayer in schools, and searches and seizures…  [I]lluminating, often contrarian analysis… Readers… will find much to learn from Driver’s independent thinking and unique insights.”
—Publishers Weekly 

“Justin Driver’s extraordinary book, The Schoolhouse Gate, deeply probes the many ways in which our constitutional law, as interpreted by America’s judges, shapes the crucial world of public education—but fails the students for whom that education exists. No one who cares about our nation’s children and thus our country’s future can afford not to read this riveting work.”
—Laurence Tribe, Harvard Law School, author of Uncertain Justice: The Roberts Court and the Constitution
 
“Justin Driver has written the definitive account of the intersection of two of the nation’s most important institutions—public schools and the Constitution.  Race, sex, drugs, religion, free speech, and indoctrination—it’s all here.  Driver brings the cases to life with compelling portraits of the characters behind the disputes, while simultaneously providing incisive analysis of the role of the Constitution in the classroom.” 
—David Cole, Georgetown Law, ACLU National Legal Director, author of Engines of Liberty: How Citizen Movements Succeed 
 
“It’s pretty unusual to be moved to tears by a closely argued book on constitutional law.  But Driver’s The Schoolhouse Gate is a most unusual book.  Written with elegance and passion, Driver’s account of the role of the U. S. Supreme Court in defining the rights of students in our public schools is also an uncompromising work of meticulous scholarship, which will define our understanding of its topic for years to come. But there’s something more: there’s an indefinable quality of hope and love in this book, for our flawed yet aspiring processes of constitutional adjudication, as well as for the millions of children whose futures they shape.”
—Martha C. Nussbaum, University of Chicago, author of The Fragility of Goodness
 
“The Schoolhouse Gate is a gripping, comprehensive, and accessible analysis of the role of the Supreme Court in the regulation of student life in public primary and secondary schooling.  It bristles with insight and eloquence and substantiates Driver’s burgeoning reputation as a leading figure in legal academia.”
—Randall Kennedy, Harvard Law School, author of Race, Crime, and the Law
 
“What a wonderful, engaging, provocative book!  Justin Driver contends that federal courts have an essential role to play in expanding the constitutional rights of public school students.  Even readers who disagree with some of the book’s conclusions—like myself—and believe that school decisions should instead be left largely to school boards, superintendents, principals, teachers, and parents will be forced to grapple with the powerful historical and legal arguments advanced in this impressive volume.”
—Judge J. Harvie Wilkinson III, U.S. Court of Appeals for the Fourth Circuit, author of From Brown to Bakke

“In this sweeping, meticulous, and authoritative account, Justin Driver shows how the Supreme Court has long shaped the lives of students in American public schools, for better but also patently for worse—affirming their freedom of speech yet thwarting it, for example, and ending their separation by race in theory yet making that almost impossible to fulfill in many places throughout the USA. He shows how momentous rulings about education helped make the Court one of the nation’s most powerful institutions, yet politically driven and frustratingly fickle. The Schoolhouse Gate is an important, engrossing, and excellent book, by an important, gifted, and brave thinker and writer.”
—Lincoln Caplan, Yale Law School, author of The Tenth Justice
JUSTIN DRIVER is Professor of Law at Yale Law School. A graduate of Brown, Oxford (where he was a Mar­shall Scholar), and Harvard Law School (where he was an edi­tor of the Harvard Law Review), Driver clerked for Supreme Court Justices Stephen Breyer and Sandra Day O’Connor. A recipient of the American Society for Legal History’s William Nelson Cromwell Article Prize, Driver has a distinguished publication record in the nation’s leading law reviews. He has also written extensively for lay audiences, including pieces in Slate, The Atlantic, The Washington Post, and The New Republic, where he was a contributing editor. A member of the American Law Institute and the American Constitution Society’s Academic Advisory Board, Driver is also an edi­tor of The Supreme Court Review. Before attending law school, Driver received a master’s degree in education from Duke and taught civics and American history to high school students.  INTRODUCTION

On June 5, 1940, hours before Katharine Meyer would marry Philip Graham at her family’s sprawling, lavish estate in Mount Kisco, New York, the happy couple joined an intimate collection of friends for what was meant to be a celebratory luncheon. It would have been difficult to envision a more stately location for the gathering, as the property called Seven Springs Farm contained one thousand acres of land and a nearly thirty-­thousand-­square-­foot Georgian mansion, boasting some fourteen bedrooms, three swimming pools, two servants’ quarters, and its own elevator. Despite this grand setting, the pre-­wedding luncheon proved anything but festive. Instead, what began as an engaging discussion rapidly descended into a ferocious dispute, with several members of the wedding party—­including both bride and groom—­excoriating Justice Felix Frankfurter for an opinion that he issued on behalf of the U.S. Supreme Court only two days earlier. Frankfurter—­who prior to joining the Court had been a legendary professor at Harvard Law School, where he was also Philip Graham’s beloved mentor—­usually relished nothing more than vigorous, even combative intellectual exchange. Indeed, The New York Times would remember Frankfurter as “the greatest talker of his time” and noted, “He loved to argue, his head darting here and there, his hand suddenly gripping the listener’s elbow as he made a point.”
 
In Mount Kisco, however, the silver-­tongued Frankfurter received more than he could handle. Even close to six decades after the incident, the ugly scene at Seven Springs remained with Katharine Graham, as she recalled in her memoir, Personal History: “Felix loved and encouraged loud and violent arguments, which everyone usually enjoyed, but this time the argument went over the edge into bitter passion.” Those in attendance reviled Frankfurter’s opinion as “deeply disturb[ing]” and “shock[ing],” she noted. The debate grew so intense, so strained that the groom’s best man dissolved into emotion as he emitted not merely discreet sniffles, but full-­fledged waterworks—shedding “great large tears” that he permitted to stream down his crimson cheeks. Frankfurter gamely sought to defend his view, but the onslaught provoked the justice to lose his composure, exclaiming that he would never again discuss judicial business in social settings. Katharine Graham recollected that “[t]he argument went on and on,” persisting so long, in fact, that they inadvertently kept the Lutheran minister waiting to perform the ceremony for more than an hour. The row did not finally dissipate, she noted, until Frankfurter “grabb[ed] [her] arm with his always iron hand and [said], ‘Come along, Kay. We will go for a walk in the woods and calm down.’ ”
 
What legal decision elicited this acrimony on such an improbable occasion? The underlying dispute dated back five years, to a community located roughly two hundred miles southwest of Seven Springs but whose reality stood much further removed still from the heights of Mount Kisco’s rarefied air—­in the valleys of Pennsylvania’s coal country. On October 22, 1935, in a small town suitably, if unimaginatively, called Minersville, a ten-­year-­old public school student named William Gobitis refused to recite the Pledge of Allegiance along with his fifth-­grade classmates. When Gobitis’s teacher noticed that he had not joined the others in saluting the American flag, she marched right over and tried to force his arm into the proper position. But Gobitis managed to resist her entreaties, locking his arm into place, with his right hand clutching his pocket. In response, Minersville’s notoriously austere school superintendent, Charles Roudabush, contacted state education officials to ensure that he possessed the authority to expel Gobitis for this brazen act of insubordination. It made no difference to Roudabush that Gobitis attributed his unwillingness to recite the pledge to his faith as a Jehovah’s Witness. As Gobitis subsequently explained in a letter to the school board, he—­and many other Witnesses, including his older sister Lillian—­interpreted Exodus’s prohibition on worshipping graven images to preclude participation in the ritual. “I do not salute the flag not because I do not love my country,” he explained, “but [because] I love God more and I must obey His commandments.” Despite the claim that the pledge requirement interfered with the Witnesses’ right to free exercise of religion protected by the Constitution’s First Amendment, Roudabush nevertheless expelled the Gobitises, ordering them not to return until they were prepared to salute Old Glory.
 
Although two lower federal courts vindicated the family’s claim, Justice Frankfurter’s opinion for the Court in Minersville School District v. Gobitis maintained that expelling Jehovah’s Witnesses for refusing to recite the pledge did not violate the First Amendment. Portions of Justice Frankfurter’s opinion, in the 8–­1 decision, extolled the unifying potential of requiring students around the nation to honor the American flag. “We are dealing with an interest inferior to none in the hierarchy of legal values,” Frankfurter proclaimed. “National unity is the basis of national security. . . . The flag is the symbol of our national unity, transcending all internal differences, however large, within the framework of the Constitution.” Ultimately, however, Frankfurter’s reasoning in Gobitis hinged not on the appeal of patriotism but on the overarching principle that it would be improper for the judiciary to reach into public schools, overturning educators’ independent decisions. “The wisdom of training children in patriotic impulses by . . . compulsions which necessarily pervade so much of the educational process is not for our independent judgment,” Frankfurter warned in a critical passage. “[T]he courtroom is not the arena for debating issues of educational policy. . . . So to hold would in effect make us the school board for the country.” The negative consequences of vindicating the Gobitises’ constitutional challenge in this instance ought not be overlooked, Frankfurter insisted, for invalidating Minersville’s expulsions would undermine “the authorities in a thousand counties and school districts of this country,” amounting to the imposition of “pedagogical and psychological dogma in a field where courts possess no marked and certainly no controlling competence.” Gobitis concluded, in sum, that judges should mind their own business, and leave educators to the business of molding American minds.
 
In Minersville, news of the Supreme Court’s decision stunned the Gobitises. After hearing a radio broadcaster announce the adverse outcome, Lillian and her mother sat speechless in their kitchen for several minutes, paralyzed in disbelief. Their refusal to pledge had long ago transformed the Gobitis children into town pariahs, with peers flinging stones in their direction and sometimes shouting, “Here comes Jehovah!” The family’s successive victories in lower courts caused them to dismiss any concern that the Supreme Court would not also redeem their sacrifices. “It never really occurred to us that the Court’s decision would be anything but favorable,” Lillian recalled. Yet the Court’s rejection hardly signaled the end of their ordeal. Shortly after the decision, a close friend called to warn the Gobitises that vigilantes planned to destroy their family-­owned grocery store if they persisted in refusing to salute the flag. Fearing violence, the Gobitis parents hastily arranged for their children to relocate to a safe house, and contacted law enforcement to protect the family’s modest business. Although a state police cruiser parked outside the store evidently deterred the plot for physical destruction, Minersville’s anti-­Gobitis contingent soon alighted upon an alternate strategy of damaging the business: a boycott. This economic approach gained enough adherents to inflict serious financial distress on the Gobitises, who were forced to borrow money from relatives simply to pay their mortgage.
 
The Gobitises were far from the only members of their faith to suffer in the aftermath of Frankfurter’s opinion, as many contemporaneous observers connected a surge of anti-­Witness violence to the Court’s legitimation of student salute requirements. The opinion arrived at an especially fraught political moment in American history as patriotic fervor reached a crescendo due to widespread fears that the nation would soon enter World War II. One day before Gobitis appeared, a Gallup poll revealed that 65 percent of Americans anticipated that Germany would attack the United States imminently. American flags sold so briskly during the month of the decision that leading outlets in New York City could not keep the item stocked. Given this frenzied environment, it should hardly be surprising that post-­Gobitis the practice of expelling Jehovah’s Witness students for refusing to salute spread dramatically throughout the country. When the Court issued Gobitis, students in fifteen states either had been or were in the process of being expelled due to the saluting controversy. Just three years later, schools had expelled students in every one of the nation’s forty-­eight states, totaling approximately two thousand students, virtually all of whom were Witnesses. Some jurisdictions, moreover, followed up on the expulsions by prosecuting Witness parents for contributing to the delinquency of minors, asserting that their children violated compulsory school attendance laws.
 
While Gobitis enjoyed approval in much of the country, the media overwhelmingly reviled the opinion, as more than 170 newspapers condemned the opinion, and only a handful of publications praised it. For present purposes, however, the most remarkable aspect of that reaction was that no single passage in Gobitis drew more ire than Frankfurter’s assertion that had the Court invalidated Minersville’s salute requirement, it would have succeeded in transforming the Supreme Court into a national school board. This dismissive sentiment especially rankled periodicals concerned with religious autonomy. Thus, The Christian Science Monitor seized upon Frankfurter’s line to suggest that Gobitis “has . . . taken a step toward abdicating [the Court’s] position as a constitutional guarantor of freedom of worship.” Similarly, in an editorial titled “The Court Abdicates,” The Christian Century insisted that “a question of educational policy may also be a question of fundamental rights,” and noted that “[c]ourts that will not protect even Jehovah’s Witnesses will not long protect anybody.” Paul Blakely—­writing in the Jesuit magazine America—­also contended that Gobitis’s avowed withdrawal from the educational domain succeeded in making school boards all-­powerful. “What further restrictions upon the right of parents to direct the education of their children will the States impose?,” Blakely lamented. “We do not know; all we know is that these are hysterical days, and that objectors will find no protection in the Supreme Court.”US

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