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The Schoolhouse Gate
Cover of The Schoolhouse Gate
The Schoolhouse Gate
Public Education, the Supreme Court, and the Battle for the American Mind
Borrow Borrow
An award-winning constitutional law scholar at the University of Chicago—who clerked for Judge Merrick B. Garland, Justice Stephen Breyer, and Justice Sandra Day O'Connor—offers an engaging, alarming book that aims to vindicate the rights of public school students, so often undermined by the Supreme Court in recent decades.

Judicial decisions assessing the constitutional rights of students in the nation's public schools have consistently generated bitter controversy. From racial segregation to unauthorized immigration, from antiwar protests to compulsory flag salutes, from economic inequality to teacher-led prayer: these are but a few of the cultural anxieties dividing American society that the Supreme Court has addressed in elementary and secondary schools. The Schoolhouse Gate gives a fresh, lucid, and provocative account of the historic legal battles waged over education, and illuminates contemporary disputes that continue to fracture the nation.
Since the 1970s, Justin Driver maintains, the Supreme Court has regularly abdicated its responsibility for protecting students' constitutional rights, and risked transforming public schools into Constitution-free zones. Students deriving lessons about citizenship from the Court's decisions in recent decades would conclude that the following actions taken by educators pass constitutional muster: inflicting severe corporal punishment on students without any procedural protections; searching students and their possessions without probable cause in bids to uncover violations of school rules; random drug testing of students who are not suspected of wrongdoing; and suppressing student speech for the viewpoint it espouses. Taking their cue from such decisions, lower courts have upheld a wide array of dubious school actions, including degrading strip searches; repressive dress codes; draconian "zero tolerance" disciplinary policies; and severe restrictions on off-campus speech.
Justin Driver surveys this legal landscape with eloquence, highlights the gripping personal narratives behind landmark clashes, and warns that the repeated failure to honor students' rights threatens our basic constitutional order. After reading this magisterial book, it will be impossible to view American schoolsor America itselfin the same way again.
An award-winning constitutional law scholar at the University of Chicago—who clerked for Judge Merrick B. Garland, Justice Stephen Breyer, and Justice Sandra Day O'Connor—offers an engaging, alarming book that aims to vindicate the rights of public school students, so often undermined by the Supreme Court in recent decades.

Judicial decisions assessing the constitutional rights of students in the nation's public schools have consistently generated bitter controversy. From racial segregation to unauthorized immigration, from antiwar protests to compulsory flag salutes, from economic inequality to teacher-led prayer: these are but a few of the cultural anxieties dividing American society that the Supreme Court has addressed in elementary and secondary schools. The Schoolhouse Gate gives a fresh, lucid, and provocative account of the historic legal battles waged over education, and illuminates contemporary disputes that continue to fracture the nation.
Since the 1970s, Justin Driver maintains, the Supreme Court has regularly abdicated its responsibility for protecting students' constitutional rights, and risked transforming public schools into Constitution-free zones. Students deriving lessons about citizenship from the Court's decisions in recent decades would conclude that the following actions taken by educators pass constitutional muster: inflicting severe corporal punishment on students without any procedural protections; searching students and their possessions without probable cause in bids to uncover violations of school rules; random drug testing of students who are not suspected of wrongdoing; and suppressing student speech for the viewpoint it espouses. Taking their cue from such decisions, lower courts have upheld a wide array of dubious school actions, including degrading strip searches; repressive dress codes; draconian "zero tolerance" disciplinary policies; and severe restrictions on off-campus speech.
Justin Driver surveys this legal landscape with eloquence, highlights the gripping personal narratives behind landmark clashes, and warns that the repeated failure to honor students' rights threatens our basic constitutional order. After reading this magisterial book, it will be impossible to view American schoolsor America itselfin the same way again.
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  • From the book INTRODUCTION

    On June 5, 1940, hours before Katharine Meyer would marry Philip Graham at her family's sprawling, lavish estate in Mount Kisco, New York, the happy couple joined an intimate collection of friends for what was meant to be a celebratory luncheon. It would have been difficult to envision a more stately location for the gathering, as the property called Seven Springs Farm contained one thousand acres of land and a nearly thirty-­thousand-­square-­foot Georgian mansion, boasting some fourteen bedrooms, three swimming pools, two servants' quarters, and its own elevator. Despite this grand setting, the pre-­wedding luncheon proved anything but festive. Instead, what began as an engaging discussion rapidly descended into a ferocious dispute, with several members of the wedding party—­including both bride and groom—­excoriating Justice Felix Frankfurter for an opinion that he issued on behalf of the U.S. Supreme Court only two days earlier. Frankfurter—­who prior to joining the Court had been a legendary professor at Harvard Law School, where he was also Philip Graham's beloved mentor—­usually relished nothing more than vigorous, even combative intellectual exchange. Indeed, The New York Times would remember Frankfurter as "the greatest talker of his time" and noted, "He loved to argue, his head darting here and there, his hand suddenly gripping the listener's elbow as he made a point."

    In Mount Kisco, however, the silver-­tongued Frankfurter received more than he could handle. Even close to six decades after the incident, the ugly scene at Seven Springs remained with Katharine Graham, as she recalled in her memoir, Personal History: "Felix loved and encouraged loud and violent arguments, which everyone usually enjoyed, but this time the argument went over the edge into bitter passion." Those in attendance reviled Frankfurter's opinion as "deeply disturb[ing]" and "shock[ing]," she noted. The debate grew so intense, so strained that the groom's best man dissolved into emotion as he emitted not merely discreet sniffles, but full-­fledged waterworks—shedding "great large tears" that he permitted to stream down his crimson cheeks. Frankfurter gamely sought to defend his view, but the onslaught provoked the justice to lose his composure, exclaiming that he would never again discuss judicial business in social settings. Katharine Graham recollected that "[t]he argument went on and on," persisting so long, in fact, that they inadvertently kept the Lutheran minister waiting to perform the ceremony for more than an hour. The row did not finally dissipate, she noted, until Frankfurter "grabb[ed] [her] arm with his always iron hand and [said], 'Come along, Kay. We will go for a walk in the woods and calm down.' "

    What legal decision elicited this acrimony on such an improbable occasion? The underlying dispute dated back five years, to a community located roughly two hundred miles southwest of Seven Springs but whose reality stood much further removed still from the heights of Mount Kisco's rarefied air—­in the valleys of Pennsylvania's coal country. On October 22, 1935, in a small town suitably, if unimaginatively, called Minersville, a ten-­year-­old public school student named William Gobitis refused to recite the Pledge of Allegiance along with his fifth-­grade classmates. When Gobitis's teacher noticed that he had not joined the others in saluting the American flag, she marched right over and tried to force his arm into the proper position. But Gobitis managed to resist her entreaties, locking his arm into place, with his right hand clutching his...
About the Author-
  • JUSTIN DRIVER is the Harry N. Wyatt Professor of Law at the University of Chicago Law School. A graduate of Oxford (where was a Marshall Scholar) and Harvard Law School (where he was an editor of the Harvard Law Review), Driver clerked on the Supreme Court for Justice Sandra Day O'Connor and Justice Stephen Breyer. A recipient of the American Society for Legal History's William Nelson Cromwell Article Prize, Driver has a distinguished publication record in the nation's leading law reviews. He has also written extensively for lay audiences, including pieces in Slate, The Washington Post, and The New Republic, where he was a contributing editor. A member of the American Law Institute, a member of the American Constitution Society's Academic Advisory Board, Driver is also an editor of The Supreme Court Review. Before attending law school, Driver received a master's degree in education from Duke and taught civics and American history to high school students.
Reviews-
  • Publisher's Weekly

    June 18, 2018
    University of Chicago Law professor Driver, a former clerk for two Supreme Court Justices, examines the intersection of the Supreme Court and the public school system in this scrupulous study of two vital American institutions. Driver smartly analyzes how the Constitution applies to disciplinary actions, free speech, prayer in schools, and searches and seizures. In addition, Driver discusses less-understood constitutional issues including permissible mechanisms for school funding and complicated problems related to school integration arising from Brown v. Board of Education. Driver’s approach to each precedent includes a sophisticated legal discussion of the Court’s majority and dissenting opinions, a recounting of how the decisions were received by the media and legal commentators, followed by his own illuminating, often contrarian analysis of the case’s importance. This structure allows him to cohesively construct his argument that the balance between students’ rights and the right of school administrators and local governments has shifted too far away from the students, to the detriment of society as a whole. Readers with the ability to grapple with complex constitutional issues will find much to learn from Driver’s independent thinking and unique insights.

  • Kirkus

    July 1, 2018
    A compendium of constitutional law as it relates to public schools.In his book-length debut, Driver (Law/Univ. of Chicago), an editor of the Supreme Court Review and former Supreme Court clerk for Sandra Day O'Connor and Stephen Breyer, assembles a coherent summary of court opinions governing a wide variety of topics bearing on public education. He contends that "the public school has served as the single most significant site of constitutional interpretation within the nation's history." This is because "the cultural anxieties that pervade the larger society often flash where law and education converge....Then we engage in an argument that is fundamentally about what sort of nation we want the United States to be." Driver explores the strange twists of school desegregation law flowing from Brown v. Board of Education along with wide-ranging coverage of such topics as students' freedom of expression; the place of prayer and religion in schools; school discipline, searches, and drug testing; and interdistrict funding disparities. The author accompanies the summaries of the decisions themselves with a survey of their receptions in the popular press and in legal academic circles. Driver often adds his own opinions of many of the decisions, but he is not overbearing about it, and his positions are generally well-grounded and well-argued. The topics are thoughtfully organized and presented in a style that is precise enough for lawyers while remaining lively for educators and concerned parents, always keeping in view the human stories behind the landmark cases. One of Driver's major concerns is that students will get early and vivid impressions of their rights as citizens from their treatment at school, and he often finds that treatment wanting.Thorough, accessible, and always relevant, this is a valuable service and reference for legal practitioners, educators, parents, and citizens concerned about constitutional rights in the context of public education.

    COPYRIGHT(2018) Kirkus Reviews, ALL RIGHTS RESERVED.

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Public Education, the Supreme Court, and the Battle for the American Mind
Justin Driver
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