Justin Driver Interviewed by Jim Kaplan, '81, on How the Law Affects Our Schools
Q&A: Law Professor Justin Driver on the How the Law Affects Our Schools
Q: Fifty-five or so years ago, when I was a child, the culture was very different: African-Americans had no civil rights to speak of; adult women, regardless of education or social class, were mainly subservient to their husbands; gay people were entirely suppressed and actively persecuted. The culture has clearly changed dramatically, perhaps to an extent matched only occasionally in previous 50-year increments in the country’s history.
But the law on social arrangements concerning education has not changed all that much. Students can still be beaten at will by their teachers and principals; public schools are still mainly segregated by race and in some cases, ethnicity; and even fundamentalist religion still has its hooks into the schoolhouse through the Supreme Court-approved home schooling phenomenon.
Do you think it’s fair to say that the Supreme Court, in its education decisions, has acted consistently as the tip of the spear in a culture war to maintain white, Christian, male, straight supremacy in the society, even though a majority of the society has accepted the cultural change?
A: No, I believe that statement offers an unduly grim conception of the Supreme Court’s decisions in this area.
I certainly have major problems with many judicial opinions involving students’ rights, including along some of the lines you suggest. To take only one glaring example, the Supreme Court’s refusal to outlaw corporal punishment in schools at this late date is, in my view, a constitutional abomination. Nevertheless, it is important to bear in mind that the Supreme Court has also issued several important school decisions that have protected the rights of various minorities in our society. For example, the Court has often interpreted the Establishment Clause to prohibit public schools from forcing students to be subjected to religious ideas that the students would deem objectionable. In addition, the Supreme Court issued an important egalitarian decision in 1982, when it refused to permit unauthorized immigrants to be banned from attending public schools.
Furthermore, students who wish to promote unpopular ideas have at least some ability to do so as a result of the Court’s decision in 1969 that honored students’ speech rights, a decision that quite plausibly could have come out the other way at that time. The Court’s record is not nearly as strong as I wish that it had been during the last fifty-five years, but neither is it the unmitigated disaster area some observers suggest.
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