Character Education Director Yael Kidron interviews Constitutional scholar Justin Driver on the rights of public school students.
Erin Fox is a journalism intern at the Markkula Center for Applied Ethics.
When Constitutional law scholar Justin Driver set out to write a book about the rights of public school students, he was initially motivated by a 1977 Supreme Court case about corporal punishment, Ingraham v. Wright. In a talk on October 17 for the Markkula Center for Applied Ethics, Driver, a professor of law at University of Chicago, said, “I was shocked to discover that corporal punishment still exists in this great nation of ours. It’s not merely a historical anomaly, this is something that persists.”
One of the goals of his recent book, The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind, he said is to elevate awareness of this “arcane practice” and motivate the Supreme Court to revisit this issue.
Driver’s talk provided an overview of the legal landscape surrounding constitutional rights of public school students, providing key examples of landmark controversies such as Brown v. Board of Education, Tinker v. Des Moines and Morse v. Frederick.
The event took place in Charney Hall, the new home of Santa Clara University’s School of Law. Santa Clara Professor of Law Deep Gulasekaram introduced Driver, a personal friend—the two met 25 years ago as undergrads at Brown University—and posed questions to bring out major themes of Driver’s argument in Schoolhouse Gate.
Driver began the conversation by remarking on his upbringing in southeast Washington, D.C., and commitment to commute and attend public school in a different neighborhood. Due to his “wonderful” educators, Driver intended to become a public school teacher himself. In fact, before attending Harvard Law School, he received a master’s degree in education from Duke and taught civics and American history to high school students. A motivator to write his book was due in part to the students’ vague understanding of historical legal battles. Driver wanted to to explain the origins of students’ constitutional rights in an accessible way, while offering his take on how the doctrine should shift going forward.
Gulasekaram and Driver then discussed several issues covered throughout the book, including racial classification, unauthorized migration, discipline in school, and due process. Driver described coming across Ingraham v. Wright during his research, which upheld the corporal punishment policy of Florida’s public schools by a 5-4 vote.
“Many people thought [the plaintiff] was going to be victorious,” Driver said. “ A few years earlier, the strap had been gotten rid of in prisons. People thought, if you can’t hit convicted criminals, there’s no way in the world that you’re going to be able to hit public school students.”
According to Driver, 19 states currently allow corporal punishment. However, there are just five states that account for 70 percent of corporal punishment instances, all of which are located in the Deep South.
Driver then dove in to historical instances of suppressing student speech. He expanded on the late 1960s case of Tinker v. Des Moines, where several students wanted to wear black armbands to protest the Vietnam War. School officials argued that, due to the recent death of a graduate in Vietnam, the issue was too controversial and likely to distract students from their work.
Out of this case came the opinion of Justice Abe Fortas, who said, “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
According to Driver, this “incredibly important opinion” is where he received the inspiration for the title of his book, for this landmark case defined the constitutional rights of students in U.S. public schools.
“Justice Fortas suggests that students speaking to one another is a vital part of the educational process itself,” Driver explained. “When students are in school, they are not merely receptacles that teachers are filling with information. Instead, it’s a more organic phenomenon, where students are educating one another.”
This topic then led to the application of Tinker vs. Des Moines in subsequent cases, such as Morse v. Frederick. In 2002, Juneau-Douglas high school students were released from classes to stand along the route of the Olympic Torch Relay through Juneau, Alaska. Senior Joseph Frederick unfurled a 14-foot banner which read “Bong Hits 4 Jesus” and was disciplined by the principal. According to Driver, Tinker was a major breakthrough, but in the following decades the court articulated a slew of exceptions to the foundational ruling, such as speech promoting illicit drug use. It was decided that Frederick’s action was not protected by the First Amendment, and pro-drug speech was deemed impermissible at a school-supervised event.