The Washington Post on Justin Driver’s The Schoolhouse Gate: "A Masterful Analysis"

How the Supreme Court has interpreted constitutional rights of school children

Eloise Pasachoff
September 13, 2018 The Washington Post

In 1969, as mass protests about the Vietnam War and civil rights roiled America, the Supreme Court issued an opinion upholding the right of students to protest peacefully at school with a memorable and oft-quoted line: “It can hardly be argued that . . . students . . . shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” In “The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind,” University of Chicago law professor Justin Driver presents a masterful analysis of the Supreme Court’s role in public school students’ constitutional rights more generally.

Across seven chapters organized thematically around different lines of Supreme Court cases, Driver — a former law clerk to Justices Stephen Breyer and Sandra Day O’Connor — makes the bold claim that “the public school has served as the single most significant site of constitutional interpretation within the nation’s history.” This claim is easy to believe after his encyclopedic discussions of the entire range of Supreme Court cases on student rights under numerous constitutional provisions: the First Amendment’s guarantees of freedom of speech and free exercise of religion, and its proscription against government establishment of religion; the Fourth Amendment’s ban on unreasonable searches and seizures; the Fifth Amendment’s protections against self-incrimination; and the 14th Amendment’s guarantees of equal protection and limits on deprivations of liberty or property without due process.

As Driver demonstrates, it was not obvious 100 years ago that these constitutional protections would extend to students at all or, if they did, how fully they would apply. The book’s portrayals of fierce battles over these rights in public schools — a primary place of “national identity” and “cultural anxieties” — amply justify Driver’s elevation of the public school as an important locus of constitutional interpretation where, time after time, the court “has played an instrumental role in shaping constitutional realities.”