Mere Creature of the State

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

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It all starts with a good dose of anti-Catholicism. In 1922, voters in Oregon passed a referendum that banned private education. Supported by such Protestant organizations as the Orange Order and the Ku Klux Klan, the new law included in its reach an Oregon military academy and a few non-Catholic schools, but the statewide campaign for the referendum concentrated on the perceived Catholic danger to the American way.

A lawsuit immediately followed, reaching the Supreme Court in 1925 under the title Pierce v. Society of the Sisters of the Holy Names of Jesus and Mary. And American jurisprudence has never been the same. The case was a key early point in the line of decisions about the free exercise of religion. It served as an indicator of where the Supreme Court would take due process, equal protection, and application of the Fourteenth Amendment. It laid the groundwork, in its analysis of familial decisions, for the development of a doctrine of privacy. And it contained, in Associate Justice James Clark McReynolds's decision for the unanimous court, the extraordinarily powerful line, "The child is not the mere creature of the State."

Pierce v. Society of the Sisters also marks a key moment in the jurisprudence of education—a jurisprudence central to the modern judicial order. Or, in the strong formulation that Justin Driver puts in his new book, The Schoolhouse Gate, "The public school has served as the single most significant site of constitutional interpretation within the nation's history." The schools are "our most significant theaters of constitutional conflict."

A law professor at the University of Chicago and a former clerk to Justices Stephen Breyer and Sandra Day O'Connor, Driver is an unabashed liberal who thinks the American judiciary has failed in not making education a fundamental right. 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.

In the 1940 Minersville case, it was Jehovah's Witness elementary students suspended from school for refusing to recite the Pledge of Allegiance. In the 1954 Brown case, it was students banned from segregated schools. In the 1969 Tinker case, it was students sent home for wearing anti-Vietnam armbands. In the 1982 Plyler v. Doe, it was children of illegal immigrants refused state schooling under a Texas statute. Always, somehow, our concerns about the clash of public order and individual rights become most pointed when the location is the American schoolhouse.

With seven chapters organized around themes in the jurisprudence, Driver's book consistently reminds us how new much of this is—largely because education belongs to the purview of the individual states and federal jurisprudence requires applying the Constitution to the states, through the mechanism of the Fourteenth Amendment. Driver reminds us as well how close many of these decisions proved. Pierce v. Society of the Sisters and Brown v. Board of Education may have been decided unanimously, but a large number of the cases were decided by 5–4 votes.

The Schoolhouse Gate makes an interesting and, I think, persuasive case for Driver's argument that we are at least reaching toward something like a nationally accepted consensus in some areas of the constitutional jurisprudence. Whether they approve or not, whether they agree or not, a considerable swath of Americans seem willing to accept the current state of religion in elementary and high-school education. The single topic most mentioned in John Courtney Murray's foundational 1960 Catholic American text, We Hold These Truths, is the perceived unfairness of public-school taxes paid by those whose children are in parochial schools, but even among Catholics today, the issue is hardly ever even brought up.

Far less persuasive is Driver's claim that, ever since Reagan's appointees joined the Supreme Court, American jurisprudence has tried to reverse the trend of the schoolhouse decisions. In presenting the cases, The Schoolhouse Gate usefully sets the context with contemporary newspaper accounts and whatever material it can gather about discussions among the justices. Analyzing the 1982 Plyler case, for example, Driver gives us plenty about the internal role of Justice Powell in shaping the final opinion—and the view of Powell in The Schoolhouse Gate is generally negative.

Taking up the question of educating the children of illegal immigrants, the Supreme Court had the opportunity, in Driver's view, to establish education as a fundamental right. And Powell, with his documented interest in his local school board, was known as the Court's most fervent exponent of the social good of public education. In the end, however, Powell simply couldn't bring himself to join any opinion that defined new substantive rights—schooling, food, housing—unlisted in the text of the Constitution.

And so, to keep a 5–4 majority, Justice Brennan had to change the draft of his opinion to remove the idea that education was a right under the Constitution, even while arguing that states could not discriminate against noncitizens with the education they offered. The failure of Plyler to reach the heights Driver wants leaves Powell a villain in the story. Nonetheless, The Schoolhouse Gate argues that Plyler is a more useful decision than is often noticed for those who wish to extend schoolchildren's rights in such areas as corporal punishment, free speech, and religious practice.

One weak point in The Schoolhouse Gate's compendium is the lack of analysis of jurisprudence that derives not from high constitutional principles but from interpreting federal regulations enforced via financing mechanisms: requirements that states perform in certain ways or forfeit federal funds. And another, perhaps more consequential, weak point is Driver's unwillingness to address head-on the drift down into high schools and even grade schools the college campaigns against free speech.

The vision of liberalism as supporting an ever-widening right to dissent is on a collision course with a different liberal vision that claims victims have a right not to be offended by dissent. Justin Driver consistently presents himself (in the personal sections of the book) as a man of the left. But the high constitutionalism of his old-fashioned leftism runs counter to the anti-constitutionalism of the new-fangled leftism that wants to define free speech as hate speech. Funny to think of The Schoolhouse Gate as a conservative text. But, then, we live in funny times.