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The Supreme Court Is Eroding the Rights of Public School Students. Brett Kavanaugh Could Make Things Even Worse.

According to Justin Driver, the author of 'The Schoolhouse Gate', the Supreme Court continues to infringe on the rights of school children. Kavanaugh will make matters worse.

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In 1965, school officials in Des Moines, Iowa, prohibited students from wearing armbands. They had heard that some students planned to wear black armbands to protest the Vietnam War. The students wore them anyways. The officials suspended them. The students sued.

Tinker v. Des Moines Independent Community School District was appealed all the way to the Supreme Court, where the students won. “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” wrote Justice Abe Fortas.

It is from this famous passage that constitutional law scholar and former public school student and teacher Justin Driver took the title of his first book. The Schoolhouse Gate is an in-depth history of constitutional law as it has been applied to public school students, one that incorporates contemporaneous reactions, analysis of pivotal decisions, and the experiences of those who took part in those cases. It’s a timely look at how students are losing their rights. 

Fatherly spoke to Driver about the past, present and future of public school students’ rights, what effect Justice Kavanaugh might have, and what parents can do to protect their kids.

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Why is the condition of public schools relevant to society at large?

The most important role in American society is that of citizen, and you cannot think about the roles of citizenship without making sure that the public schools honor constitutional rights. The Supreme Court said that it’s “especially imperative” that schools preserve constitutional rights lest students learn to discount constitutional principles as mere platitudes, which would in the language of the Court “strangle the free mind at its source.”

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You write about how, prior to the 1970s, Supreme Court decisions were reasonably protective of students’ rights.

In the 1940s, there was an important case where the Court said it was impermissible to require students to pledge allegiance to the American flag, that the right to speak involves a corollary of the right not to speak. In the 1950s, Brown v. Board of Education springs to mind and, in the 1960s, the Court in Tinker said that students communicating with one another is an important part of the educational process.

In more recent decades, however, the Supreme Court has been more inclined to side against expanding students’ rights.

The Court has fallen down on the Fourth Amendment with respect to search and seizure, and there has been a real retrenchment on freedom of speech. For example, Tinker is a foundational student free speech case, but in the intervening decades the Court has taken a pretty jaundiced view of student speech. In Morse v. Frederick, the Supreme Court took a very unusual approach permitting viewpoint discrimination if a principal believes that a student is promoting illegal drug use. That’s just one of a few decisions in this area that have refused to build upon Tinker. But it would be inaccurate to conclude that Tinker has no force whatsoever.

So, what has changed?

I think the explanation is the change in personnel at the Supreme Court. Republican presidents have appointed far more justices to the Supreme Court than have their Democratic counterparts. Between Justice Thurgood Marshall in the late 1960s and Justice Ruth Bader Ginsburg in the early 1990s, there were ten GOP-appointed justices in a row. That is enormously consequential for the approach to student rights that has emerged in recent decades.

With Justice Gorsuch and potentially Justice Kavanaugh, do you see this trend continuing?

If Judge Kavanaugh becomes Justice Kavanaugh, the doctrine could grow more conservative in some areas, including school districts’ desire to achieve greater amounts of racial integration. Justice Kennedy [who Kananaugh is primed to replace] wrote an opinion [allowing] race-conscious actions on the part of school boards.

If you look at Judge Kavanaugh’s writings, he seems to be an advocate of colorblind constitutionalism. You could also see Justice Kavanaugh taking a more forgiving approach to the introduction of religion in public schools whereas Justice Kennedy was quite strong [against it].

Transgender rights are an issue that is going to make its way back to the Supreme Court sooner rather than later. It’s at least quite plausible that a Justice Kavanaugh would hold the decisive vote.

Is hope for those who want to expand student rights?

I don’t think that hope is completely lost. There are areas for reform where liberals and the libertarian-inflected vision of constitutional law that is ascendant in some right wing circles might be able to find common ground with each other.

One, free speech, liberals and libertarians could rally around that issue. Corporal punishment is a second. Students are the sole remaining group of Americans who are permitted to be beaten by government officials for not following instructions, and I hope libertarians and liberals would be skeptical of that. One final area would be suspicionless drug searching. The Court has upheld the ability of school districts to collect urine samples from students simply for participating in extracurricular activities; that should make liberals and libertarians queasy.

What about outside of the court?

It’s possible for school boards or for state legislatures to pass measures that afford greater amounts of protections to students than the Constitution affords. We can view the Constitution as the floor below which school districts may not go, but it’s not the ceiling.

School boards and legislatures have passed legislation involving the student press or refusing to permit school officials to conduct strip searches that go beyond what the Constitution has been found to require, so that’s yet another reason why ordinary people need to be engaged with what’s happening in our public schools.

What role have parents played in advocating for the rights of their children as students?

One of the things that I’m attempting to do is shine a light on the courageous acts of families across the United States when they are standing up to school officials and their surrounding communities. In the Tinker case, school officials [fought the parents] and members of the community splattered red paint on the Tinkers’ front door, with the implication that only communists would oppose the Vietnam War. It required tremendous courage of the parents and the students for being willing to see that case through. You see this time and again.

What can today’s parents do?

It’s important to get engaged because your child’s constitutional rights might be infringed. And even if your case doesn’t make it to the Supreme Court of the United States, there are ways that it’s possible to get educators to rethink their approach. Sometimes teachers who want to make students pledge allegiance. Sometimes students want to wear Black Lives Matter T-shirts and school officials want to tamp that down. But if parents are aware of the background of student constitutional rights, it will help them ensure that their child’s rights are not infringed.

Do you think that schools as they sit now are Constitution-free zones?

No. I do not believe that they are currently Constitution-free zones, I do worry about the direction that the doctrine is moving, and I worry that students may have the perception that the Constitution may not apply.

I don’t want to give the impression that the Constitution is a dead letter in public schools, but I do want to alert the public to the risks to the Constitution that exist in the public schools to encourage people to take a broader role.

The interview has been condensed and edited for clarity.