Those interested in learning more about constitutional law issues arising in the public schools would be well advised to check out Professor Justin Driver’s new book The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind (Pantheon Books, 2018). The epic work by the University of Chicago law professor examines a bevy of constitutional law issues, including freedom of religion, freedom of expression, search and seizure, right of self-incrimination, due process and equal protection controversies.
The author examines the Supreme Court’s jurisprudence in these areas with a critical eye and bold critiques. For example, he explores the Court’s 1986 decision in Bethel School District v. Fraser (1986) in which the Court ruled that public school officials can prohibit student speech that is vulgar or lewd. Driver explains that the Court majority erred in its decision, because it punished a high school student (Matthew Fraser) for a political speech that was not substantially disruptive of school activities.
One may not agree with all of Driver’s assessments. For example, Driver believes that the Supreme Court reached the correct result in Hazelwood School District v. Kuhlmeier (1988), a controversial decision that gave school administrators greater power to censor student newspapers and other forms of school-sponsored student speech.
Driver argues that the Court reached the correct result because a school-sponsored newspapers is a form of government speech. Such an argument fails to appreciate the efforts of student-journalists and perhaps does not appreciate that many observers would view articles in a student newspaper more as the speech of the student-journalists rather than the official word of school officials. After all, many censored student-speech articles are quite critical of official authority, which accords perfectly with the highest purpose of the First Amendment.
He also addresses cutting-edge K-12 student expression issues, such as the censorship of off-campus, online student speech by school officials. “If students do not surrender their constitutional rights upon entering the schoolhouse gate, it should be intolerable that students would forfeit them when they stand outside that gate,” he writes.
Driver’s book is informative, incisive, and educational. He writes that one of his goals in writing the book is to “reinvigorate education law as a field of intellectual inquiry.”
He has surpassed that goal and so much more with his landmark work.
David L. Hudson, Jr., a Visiting Associate Professor of Legal Practice at Belmont University College of Law, is a First Amendment attorney and author who has written, co-written, or co-edited more than 40 books, including First Amendment: Freedom of Speech (Thomson Reuters, 2012), Let the Students Speak: A History of the Fight for Freedom of Expression in American Schools (Beacon Press, 2011), and Documents Decoded: Freedom of Speech (ABC-CLIO, 2017).