The Supreme Court used to answer with a resounding yes. In recent decades, regrettably, it has changed its mind.
By Justin Driver
Mr. Driver is a law professor.
On Tuesday, as many students around the country start the school year, the eyes of the nation will turn to the Senate Judiciary Committee as it begins hearings on Judge Brett Kavanaugh’s nomination to our highest court. The convergence of these two events presents an opportunity to stress the crucial intersection of two distinctively American institutions: the public schools and the Supreme Court.
Public education occupies a central place in our national identity. As the politician Adlai Stevenson once remarked, “The most American thing about America is the free common school system.” Similar assessments have been made of our judiciary. In the 1830s, Alexis de Tocqueville offered a prominent formulation of this idea: “There is hardly a political question in the United States which does not sooner or later turn into a judicial one.” Over the following two centuries, the judiciary, with the Supreme Court at its apex, has assumed only a greater role in American society.
Although these two institutions are seldom studied in concert, it is impossible to grasp the full significance of either one without understanding the other. You cannot understand public education in the United States today without appreciating how the Supreme Court shapes the everyday realities of school life. Conversely, you cannot comprehend the Supreme Court’s role in American life without appreciating how its education decisions shape our social world.
Consider simply the sheer size of public education. Today, more than 50 million students attend public schools in the United States. These schools require a few million adults to serve as teachers, administrators and staff members. Those figures mean that on any given weekday, about one-sixth of our national population can be found in a public school, making it the largest governmental entity that Americans encounter for sustained periods. Consequently, an enormous amount of American life occurs within the constitutional parameters that the Supreme Court determines apply to public education.\
For a few decades, beginning in the 1940s, the Supreme Court issued a series of vital decisions establishing that students and teachers retain a wide array of constitutional rights and that schools cannot ignore the Constitution’s central protections. In a 1943 opinion, for example, the court prohibited schools from requiring that students salute the American flag, warning that if public schools neglected constitutional rights, minors would incorrectly conclude that governmental authority recognized no limits. In 1954, in Brown v. Board of Education, the court ruled that the nation that had so recently helped topple an Aryan supremacy movement abroad could no longer permit Jim Crow schools at home.
In 1960, the court overturned an Arkansas law requiring teachers to disclose every organization with which they had been affiliated in the past five years. In that case, Justice Potter Stewart explicitly identified the public school as a legal domain of paramount import, one demanding “the vigilant protection of constitutional freedoms.” In 1969, after public educators in Iowa prohibited students from wearing black armbands in school to protest the Vietnam War, the court invalidated such prohibitions, declaring that neither students nor teachers abandon their constitutional rights “at the schoolhouse gate.”
Over the past few decades, regrettably, such sentiments on the Supreme Court have appeared more often in dissenting opinions than in majority opinions, as the court has distorted the Constitution’s meaning in public schools. In 1985, for example, Justice John Paul Stevens dissented from a decision that permitted the search of a high school student’s purse after she was caught smoking, a ruling that established an anemic conception of the Fourth Amendment’s privacy protections. In dissent, he stressed not only the searched student’s constitutional claims, but also the shoddy lesson in civil rights that the episode imparted.
“The schoolroom is the first opportunity most citizens have to experience the power of government,” Justice Stevens wrote. “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.” Transforming public schools into Constitution-free zones, he sagely warned, was dangerous in part because when today’s students become tomorrow’s adults, they risk bringing with them impoverished understandings of constitutional protections.
That 1985 decision had serious flaws from the outset, but subsequent developments have made things only worse. For instance, the judiciary has since adopted an unacceptably lax attitude toward schools that force students to take drug tests even in the absence of any suspicion of drug use. In a 2009 decision, the Supreme Court correctly invalidated the strip search of a middle-school student who was thought to possess nothing more hazardous than prescription-strength ibuprofen tablets, but it erred by announcing a legal standard that afforded teachers excessive discretion to execute such humiliating searches.
The Supreme Court needs to revisit that wrongheaded piece of Fourth Amendment jurisprudence. It also needs to address crucial First Amendment and Eighth Amendment protections in public schools that the court has either damaged or disregarded.
When it comes to student speech, the court has issued a series of dubious decisions permitting educators to suppress students’ First Amendment rights, including a 2007 opinion that upheld a so-called viewpoint restriction by authorizing schools to censor student speech that appears to promote illegal drug use. Lower courts have expanded the rationale of that 2007 opinion well beyond the drug context to include student speech that schools fear may have unwanted “psychological effects” or prompt “an upsurge in truancy.”
The Supreme Court needs to make clear that students possess the right to communicate contentious ideas on campus, that would-be student hecklers will not be permitted to silence legitimate student speech by issuing threats of violence and that students enjoy expansive speech rights off campus. Without such decisions, public schools risk becoming the very “enclaves of totalitarianism” that the Supreme Court repudiated in its 1969 decision vindicating student protests of the Vietnam War.
In addition, the Supreme Court should hold that the Eighth Amendment’s clause banning “cruel and unusual punishments” forbids public educators from striking students. Because of a misguided 1977 Supreme Court ruling, students are the sole remaining group of Americans whom governmental employees may beat with impunity, even when they pose no threat to safety.
The past four decades have demonstrated that wooden paddles have no place on the bodies of public school students. Although nearly every state permitted corporal punishment during the 1970s, fewer than 20 states do so today, and only a handful — all in the Deep South — account for a vast majority of beatings. That well into the 21st-century public educators continue striking pupils (a disproportionate percentage of whom are members of racial minorities) is a legal and moral abomination.
These Supreme Court failures should alarm not only schoolchildren and their parents, but also the entire nation — including, I hope, Judge Kavanaugh. Next week, as senators press the nominee on various issues, I urge them to explore his conception of the school as a site of constitutional interpretation. For as the Supreme Court itself once recognized, it is impossible to disregard the constitutional rights of students without ultimately damaging the republic to which they pledge allegiance.
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