Justin Driver, "The Future of the Supreme Court: The Constitution of Public Schools"
Supreme Court decisions affecting 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 among the defining cultural issues that the Court has addressed in elementary and secondary schools. Drawing from his provocative new book, The Schoolhouse Gate, Justin Driver discusses the historic legal battles waged over education that continue to threaten our basic constitutional order.
This talk was recorded on October 4, 2018, as part of the Law School's annual First Monday lecture series.
Transcript
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Dean Miles: Good afternoon everybody. Good afternoon and welcome. Welcome to today's First Mondays event. I realized it is not a Monday, it's a Thursday, but nevertheless we are celebrating first Mondays. For those of you who don't know me, I'm Tom Miles. I'm the Dean of the Law School. Because you are here, you know that First Mondays are a great tradition at the law school. Where each autumn, maybe not on the exact day, but close to the exact day, of the beginning of the Supreme Court term, we invite a member of the faculty to come and to share their insights with us about the upcoming Supreme Court term and importantly about the biggest trends and developments that they see in constitutional law. And of course our faculty, as all of you know, are well known for not only being outstanding scholars with deep knowledge, but they're more than that.
Justin Driver: They are people who produce ideas that challenge our conventional understandings, that shift our perspective on entire fields of law, and even create new paradigms for our thinking about law. And we're very fortunate today to have a faculty colleague who will discuss his new book that does just that. It challenges conventional wisdom about constitutional law and causes us to think about the supreme court in new ways. Justin Driver is the Harry N. Wyatt Professor of Law and the Ludwig and Hilda Wolf Teaching Scholar at the Law School. He has an enviable set of academic credentials. He holds degrees from Brown, Oxford where he was a Marshall Scholar, Duke where he received a master's degree in education, and from Harvard Law School where he was an editor of the Law Review. He then went on to clerk first for judge Merrick Garland in the DC circuit and then for Justices Sandra Day O'Connor and Steven Breyer.
Justin Driver: Since joining academia, his scholarship and teaching have focused on constitutional law, constitutional theory, and the intersection of race and legal institutions. His writing for academic audiences has been award winning. For example, he has received the William Nelson Cromwell prize from the American Society of Legal History, and Professor Driver is the first new editor of the Law School's flagship Supreme Court Review in over 20 years. He writes regularly for wider audiences in venues such as the New York Times and the Atlantic. He's a sought after commentator on the Supreme Court and developments in constitutional law. In the book which you have received or can receive at the end of lunch, The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind has received reviews that are turning the entire faculty green with envy. It's been profiled in the New Yorker, the Washington Post called it masterful, the New York Times called it indispensable, exquisitely well timed, encyclopedic, fair, and elegantly written. Another reviewer called it's sophisticated legal discussion illuminating often contrarion, and it exhibits independent thinking and unique insights. The Schoolhouse Gate challenges the conventional wisdom about the Supreme Court's role in American society. The book identifies schools as a significant theater for the contestation of constitutional rights. The book gives close attention to the individual litigants in the cases as well as the broader social context of the decisions. And at a moment when most law professors are very skeptical about the power of the Court to influence society, Professor Driver concludes that the Court has an under-appreciated ability to shape our nation. So please join me in welcoming Professor Justin Driver.
Justin Driver: Okay. So thanks so much for coming out today. I'm really delighted to be here to talk about my book and to talk about the future of the Supreme Court. I'm especially delighted to do this because this book is better for my being at the University of Chicago. One of the great things about being a faculty member at the University of Chicago, when you're undertaking a book project like this one, is that you have colleagues who are willing to set aside their own work and really roll up their sleeves in order to engage with your work and improve it. You know, this book required me to stretch out over a whole host of constitutional provisions, some of which I have a fair amount of familiarity with, others of which I don't have... I didn't have much familiarity at all. So when I finished my chapter on student speech, I gave it to Geof Stone.
Justin Driver: He gave me magnificent comments. When I finished my chapter on the religion clauses, I gave it to Professor Nussbaum and she gave me unbelievably helpful comments, and David Strauss and the list could go on and on. And each of the colleagues really engaged, saw it on its own terms, and helped to improve the project. The second reason that I'm glad to speak with you all in particular is the students at the University of Chicago. I proposed teaching a course on education law at the University of Chicago, and that proposal was accepted enthusiastically. And so I've taught a course called the Constitution Goes to School, and the students were unbelievably helpful in that class at pushing back when ideas that I floated seemed wrongheaded to them, and helping me to refine my ideas. It was especially helpful because, you know, they were in high school a lot more recently than I was.
Justin Driver: And some of them were in high schools as teachers. And so that was a particularly valuable a lesson. One other reason, the University of Chicago, people work with me: I have students, RAs, who are unbelievably helpful, including at least one of whom is in this room who improved the book dramatically in working with me on this project. And so I'm just very grateful. Okay. I'm going to give you a broad overview of the book. I'm then going to turn to identifying three particular cases or issues that I care a great deal about and I hope that you will as well. And then I'll close by offering my vision as to what some of the flashpoints are on the horizon that are going to get attention in the future. So broadly conceived, the book is about the intersection of what I regard as two central institutions in American society.
Justin Driver: The Supreme Court, on the one hand, and the public school on the other. And I try to argue in the book that it's difficult, if not impossible, to understand either institution without thinking about the other. That is to say that we don't often think about public schools as being legal institutions, but the Supreme Court and the lower courts have articulated a whole host of constitutional provisions that exist in schools and offer students rights that are different in the public school than they are in, say the public park. And so I have a chapter on freedom of speech, as I mentioned. I have a chapter on school discipline, thinking about suspensions and corporal punishment and due process rights. Thinking about criminal procedure, religion, the equal protection clause there is... The school is exactly as Dean Miles suggested, a theater of constitutional conflict. Indeed, I argue, our most significant theater of constitutional conflict.
Justin Driver: I thought that I was going to be a public school teacher when I graduated from college and got certified to teach public school. I had only a vague sense of the constitutional decisions that exist, and so one of the audiences for the book is to try to speak to teachers and educators and parents about the constitutional rights that exist in our nation's public schools in an accessible way. Because I want to explain the origins and the contours of these rights and also offer some normative vision for how our constitutional doctrine in this area should shift going forward. So that's thinking about the public school as shaped by constitutional law, but the other part is to think about the Supreme Court's role in American society, and I contend that the education cases offer a particularly sort of vivid prism for viewing the Supreme Court's role in American society.
Justin Driver: Exactly as Dean Miles suggested, I, unlike many of my constitutional law colleagues, believe that the Supreme Court has a large role to play in American society and that it has been effective at issuing decisions that shape our constitutional order often for the better. Though in recent decades, I believe that it's fallen down this responsibility, and so let me tell you about at least one case that illustrates the Supreme Court's capacity for change. The prior generation of constitutional scholars to mine invented a term called constitutional outliers. They say there, it's often true, that the Supreme Court, when we think of them as changing the nation all across the land, in fact, they are countering statutes found in only a small number of places, one or two or at most five states. These are outlier statutes that stand apart from the rest of the nation.
Justin Driver: That's a very valuable contribution. I think that that was a valuable corrective because the prior generation, two generations, ago often would just sort of assert, you know, the Warren Court changed everything. When and when you really look at what the Warren Court did, it was invalidating a practice found in a small number of places. Griswold v. Connecticut is a helpful statute for this proposition. But I try to argue that simply because a statute is found in a small number of places, doesn't mean that it was unpopular or destined for the dustbin of history. And so I try to draw a distinction in my scholarly work between two different variants of outliers, between a holdout measure versus an upstart measure. A holdout is something that was once widespread and has receded to all but a small number of jurisdictions. Griswold v. Connecticut would be the poster child for this proposition. That's distinct from an upstart where the state is the first in the nation to enact a measure and there's every reason to believe that in some instances that these measures could become widespread.
Justin Driver: One of the cases I write about is a case called Plyler v. Doe from 1982. That was a decision that invalidated a Texas statute. Texas sought to exclude unauthorized immigrants from the nation's public schools. And some people have said, "Well those were just a bunch of yahoos down there in Texas. Only the cowboy mentality that exists down there would back such a statute." That is not a credible way of viewing what was at issue there. We know very well today that anxieties about unauthorized immigration are far from confined to the nation's border. And so you can agree with that decision or disagree with that decision, but there's no doubt that it's been efficacious in allowing millions of people to receive a public education who otherwise would have been unable to do so. Alabama enacted a similar measure. California enacted a measure, and many other states would have enacted these sorts of measures as well.
Justin Driver: So just because it's found in a small number of places doesn't mean it's insignificant, it's an insignificant measure. Okay. So now I'm going to talk about three different issues that I care about quite a lot in the book. And as Dean Miles suggested, I'm going to try to focus somewhat on the litigants themselves because one of the things that I encountered with this book was that students and their parents required a tremendous amount of courage to stand up oftentimes not only to just school officials but also their larger surrounding communities. And that's true of the first case that I'm going to talk about, which is the Tinker case from 1969 where there are students in Des Moines, Iowa who wished to wear black armbands in protest of the Vietnam War. School officials get wind of this plan and say, oh no, that is too controversial a message.
Justin Driver: We have a student who is, we have a graduate of the Des Moines schools who died over in Vietnam. He has classmates who are still here and, you know, you cannot do this. This is going to be a dishonor of his memory, and they're going to be upset and it's going to create too much controversy. As I say, it wasn't only the school officials who rejected this message, there were people in the Des Moines community who splattered the Tinkers' front door with red paint. The evident implication is that only a communist, a red, would dare to disagree with the Vietnam War. It's worth saying that this protest happened in 1965 at a time when the Vietnam War remained quite popular. This is before any sort of mass mobilization against the Vietnam War, and it's an open question at the time as to whether students have the ability to express themselves affirmatively in schools or whether the teacher or the principal can just say no and that's the end of the story.
Justin Driver: The Tinkers are suspended from school and told they are unwelcome to return until they agree to shed their black armbands. The decision itself is issued in 1969 by Justice Fortas and he gives me the title for my book where he says, "It can hardly be argued that students shed their constitutional rights at the schoolhouse gate." And he also contends that students speaking to one another about the issues of the day is not merely a sort of tangential feature of schools, but instead it's integral to education itself. He says that ours is a relatively open and permissive society, often disputatious, and that it would be odd and awkward if we were to silence students, to tell them that they can't express themselves, would be to turn the school into an enclave of totalitarianism, he says, and that would be unacceptable. Justice Hugo Black wrote a dissent that he felt quite passionately about.
Justin Driver: He spoke from the bench for more than 20 minutes, an indication of exactly how much he disliked what the Court was doing. He said, "I want it known that I disavow any sentence, any word, any part of what the Supreme Court does today." He was so impassioned that Chief Justice Warren is reported to have said "Old Hugo really got caught up in his jockstrap on that one." And some people have said that it's an episode from a Justice Black's personal life that made him take this sort of hostile tone. His grandson was suspended from school for producing an underground newspaper, and you know, Justice Black wrote his daughter-in-law a letter saying the school has done exactly the right thing here, you know, our society is spinning out of control. There are all these sit-ins.
Justin Driver: Just there's too much happening. And he writes in the opinion, "Students, in effect, are to be seen and not heard. Teachers are in charge. Students should not be trying to teach." It's mistaken in my view to dismiss Black's attitude as nearly one sort of elderly grandfather's fit of peak. I think instead that Justice Black was tapping into a deep wellspring of anxiety that existed in the 1960s and indeed exists today about youth culture in American society. I found some polling data that suggested that a majority of people, when they were asked "Should students be able to have their protests?" The answer, the majority said "No, they should not be able to have their protests." And it's worth saying that the question was phrased in such a way that what would have most readily been called to mind for most people, I believe, would not have been protests at the high school level but instead at the college level.
Justin Driver: This is of course in the era of the unrest at Columbia University and Mark Rudd and students for a Democratic Society. And so people have queasiness about college students protesting, you only imagine how intense the opposition would have been at the high school level. And so it's worth saying that these views have not completely disappeared. When I was a law clerk at the Supreme Court, the Court heard a case called Morse v. Frederick, which exactly nobody calls Morse v. Frederick. Instead everybody calls it by the name "Bong Hits for Jesus." This is the slogan that was written on a banner at a high school, right outside of high school in Juneau, Alaska. A high school senior goes to school and stations himself right across from the school where there is a parade in honor of the Olympic torch making its way down Glacier Avenue in Juneau, Alaska. And a young Joseph Frederick, 18 year old Joseph Frederick, unfurls the banner, and the principal sees it, marches right over, and snatches it out of his hands and proceeds to suspend him.
Justin Driver: And again, it's an open question as to whether this violated the Constitution. Chief Justice Roberts wrote an unusual opinion where he says that if the principal reasonably believed that the speech is designed to promote illicit drug use, then it's permissible to punish the student for this statement. And that's unusual of course because it's a whole mark of the First Amendment that you're supposed to be viewpoint neutral. But here, Chief Justice Roberts wrote the opinion so as to make it permissible to punish pro-drug speech but of course not anti-drug speech. And so Justice Thomas's opinion is particularly relevant here because he in many respects is trying to channel Justice Black. And he says, Justice Black was exactly right, his opinion was prophetic, and he says that Tinker was wrongly decided in the first instance and we need to revisit it. In the good old days, you know, teachers commanded, students obeyed. It's worth saying that Justice Scalia, his fellow originalist, did not join that opinion, which raises interesting questions about when originalists are trying to vindicate the original public meaning and instead when they are willing to accept precedent.
Justin Driver: Okay. The second issue that I'm going to talk about relatively briefly involves not the First Amendment but the Fourth Amendment, the prohibition on unreasonable searches and seizures. The case I would like to focus on here is one out of Oklahoma involving a student called Lindsay Earls, who can remember she's, she is about 40 miles away from Oklahoma City, so a relatively remote part of Oklahoma. She can remember being summoned along with many of her classmates, to the girl's restroom. She's a high school student and, she's told that she has to hand over a urine specimen for participating in an extracurricular activity. It's even, so this is what we regard as a suspicious-less drug search regime. And so she talked about being ushered into the restroom and having a teacher stationed outside of the stall, listening for the telltale sounds of urination, and coming out of the stall handing the, the vessel to her teacher who proceeds to inspect it for the right body temperature and also hold it up to the light in order to make sure that the color and clarity as, as one would hope it would be.
Justin Driver: She also recalled overhearing teachers joking about this was an elaborate potty trading exercise for the 11th grade students in Oklahoma. In most instances, of course, the Fourth Amendment frowns on these searches, these sorts of searches, in the sense that it's a dragnet, right? There's no particular individualized suspicion of any wrongdoing on anyone's part. Nevertheless, the Supreme Court of the United States in the Earls decision upheld the search and said that it did not violate the Constitution of the United States. Again, just as with the Tinkers, Lindsay Earls received a very hard time of it from members of her community. There were people who said that she had lost sight of her Christian faith which is a charge that really carried real venom in her part of Oklahoma. There were people who said that she just is a druggie and she really wants to use drugs. That's what's motivating her opposition to this regime.
Justin Driver: And it's one thing that this had happened in Oklahoma. A version of this also happened at the Supreme Court of the United States. During the oral argument, Justice Kennedy, who's generally speaking, who was generally speaking during oral argument, pretty subdued and sort of, you know, sober. He apparently turned red-faced is he sort of chastised the attorney for Lindsay Earl saying, "The only person who would send their kid to a druggie school are you and your client." And so this is a measure of how these cases have the ability to really elevate the temperature, and again, there's a symmetry between the "Bong Hits for Jesus" case and the Earls case where, if we're talking about drugs, then it seems virtually anything goes. Okay. The final case that I'm going to speak to you about that I write about in the book involves corporal punishment. It's the Ingraham v. Wright decision which is decided in 1977. This is the issue that I care the most about. If there's any single part of the book, it's this one that I really feel like I'm trying to elevate the salience of this matter so that people will take it more seriously. So the facts of Ingram are these.
Justin Driver: In 1970, James Ingraham is a student in Miami, Florida. He is on a stage not unlike the one that I'm on right now, before a school assembly. He is a delinquent in delaying the stage during the school assembly along with some other students. And for that horrific conduct, he is summoned to the principal's office where he is meant to receive five licks, in the parlance, licks administered by a two-foot wooden paddle and by the principal. When James Ingraham's turn arises, he protests his innocence or it says it was a mistake. And for that act of insubordination, there are assistant principals who are summoned and they grab him and bend him at the waist, and hold his extremities down his legs and his arms. And he receives not five licks, but 20 links. And the beating is so savage that James Ingraham receives medical attention immediately where he's given cold compresses and laxatives and pain relievers and sleeping pills. Three days later he returns to the doctor and there are doctor's notes saying that he has a six inch in-diameter bruise that it is tender, purpleish and swollen and indeed oozing fluid.
Justin Driver: It's more than two weeks before he's able to return to school. And it is three weeks before he is able to sit down without discomfort. You, you'd be hard pressed to identify a more egregious set of facts than these. And it's worth saying that James Ingraham was not alone. There were students who were struck for having untucked shirts, for sitting in the wrong seat, for being late to class, for not having the right socks for gym. And some students were hit for doing nothing at all. Some members of the class are disrupting, they had what we might think of as collective sanctions. That's it. All of you are getting it. The school district in its effort to defend the measure actually ended up making things worse. There was testimony where there's a principal at a Miami beach school where he says, "Oh no, we don't use corporal punishment in our school. We have a predominantly Jewish population, and they understand oral persuasion." Left unstated is that the students at the all black junior high school, Charles R. Drew Jr. High School, that they only, they understand only brute force.
Justin Driver: So people at the time believed that this is going to be victorious case. It's an Eighth Amendment challenge, predominantly, right? Cruel and unusual punishment. And the Supreme Court United States turns away that challenge in a very unusual interpretation. It says that this doesn't qualify as punishment for constitutional purposes. That this is punishment that did not flow from a criminal conviction, and even though the text of the Eighth Amendment says cruel and unusual punishment, they in fact read it to say cruel and unusual punishment that flows from a criminal conviction. It's worth saying that just a few years earlier that the lower federal courts got rid of corporal punishment from the prisons. They got rid of something called "the strap." And so people thought if there's, if you're not able to hit someone who's convicted of a crime for disobeying the instructions, say, there's no way in the world that are going to be able to do this to students.
Justin Driver: There was also a 14th Amendment challenge dealing with due process. And again, here there was an advantageous earlier decision where two years before the Ingraham decision that I'm telling you about right now, there's a case called Goss v. Lopez that said that students are entitled prior to suspension, a brief informal hearing where they're able to explain themselves and there's a brief moment for back and forth. And so if you get due process before you're suspended, surely you're going to get due process before you are whacked with a paddle. But that's not how the Court saw it. The Court said in effect that you can get money damages on the back end if there is a truly a sort of egregious instance, and so I care about this issue most passionately because it is alas not a relic of a bygone era.
Justin Driver: Corporal punishment still exists in this great nation of ours. There are still 19 states that have the practice. Even that way of saying it overstates its prevalence in the sense that only five states, all located in the South, account for more than 70 percent of the instances of corporal punishment. And so I hope that the Supreme Court of the United States will revisit this issue and eliminate this archaic practice. And I say it's the Supreme Court of the United States because I fear that the jurisdictions that retain the practice at this late date are not going to abandon it on their own. And it's worth saying that it's not found generally speaking in the urban areas. Instead it is the more, more rural areas that retain the practice. Um, you know, ours is obviously a quite a polarized moment, a quite divisive moment. I do hope that the three issues that I've spoken to you about today, that it may be possible that the Supreme Court would be able to have a coalition that unites liberals and the libertarian inflected vision of constitutional law that is ascendant in some conservative circles.
Justin Driver: After all, if you're a libertarian, you have a skepticism of state authority. Yet what do we have with respect to the freedom of speech, the Fourth Amendment, and perhaps most acutely the Eighth Amendment, other than the state exercising his authority in a way over minors in our society. So I am hopeful about our constitutional future. Let me talk just very briefly here about a couple of issues that are on the horizon in this area that are in play as a result of Justice Kennedy's departure from the court, from the court. One is the potentially the Plyler v. Doe decision that I mentioned at the beginning of my remarks. That's the measure that would exclude unauthorized immigrants. Chief Justice Roberts, when he was a young attorney at the department of justice, coauthored a memorandum suggesting that Plyler v. Doe was wrongly decided. And so you could quite easily imagine, especially in our current political moment, people deciding to enact a statute that would be designed to test Plyler v. Doe. Kennedy never expressly weighed in on the legitimacy of that decision, but given his solicitude for minors and sort of vulnerable members of our society, I believe that he thought he would have thought Plyler v. Doe was correctly decided.
Justin Driver: If Chief Justice Roberts continues to adhere to the view he expressed in 1982, then that could change and, you know, with major consequences for our constitutional order. A second area would be race conscious admissions practices. You know, Justice Kennedy, when I was a law clerk at the court, wrote an opinion in a case called Parents Involved in Community Schools. This was a case that arose from Louisville, Seattle where the school boards voluntarily enacted race conscious admissions practices as a way of bringing about greater amounts of inclusion so that the schools would reflect the racial diversity of the city rather than only the neighborhoods in which the individual schools were found. Chief Justice Roberts writes an opinion for the Court where he says in effect that these plans are exactly like, from a constitutional perspective, the plans that were invalidated in Brown v. Board of Education.
Justin Driver: The Jim Crow era involved telling students where they could go to school based on the color of their skin, Robert said, and these plans tell students where they can go to school based on the color of their skin. It matters not one whit, from a constitutional perspective for Roberts, that these programs are designed to bring people together, even though obviously the old plans were designed to keep people apart and indeed to subordinate black people. Kennedy wrote a separate opinion where he said that schools can be conscious of race as they draw the district boundaries, and they can also be conscious of the larger racial demographics of the city when they were deciding to build a school. And so this, uh, you know, did not completely shut the door to race conscious practices. And Kennedy eventually would become a savior, a sort of improbable savior of affirmative action, in the Fisher II decision out of the University of Texas. And so it's quite plausible that whomever replaces Justice Kennedy will take a more jaundiced view of race conscious admissions practices.
Justin Driver: So I think that's an area in flux. The final one that I'll identify for you is the issue of trans students, transgender students, and access to restrooms. This is something that Kennedy never wrote on, but he was obviously the most vocal proponent of gay equality in the history of the Supreme Court and many people would view these issues as linked. The Supreme Court agreed to hear a case involving a student called Gavin Grimm awhile back out of Tidewater, the Tidewater area in Virginia. The Fourth Circuit relied on the Obama administration's guidance on this issue, under Title IX saying that transgender, trans students should be able to use the bathroom that's congruent with their gender identity. Trump administration rescinded that guidance, and increasingly, courts have been using the equal protection clause in order to wrestle with these sorts of challenges. And so the Gavin Grimm case, again, making its way through the Supreme Court, making its way through the lower courts.
Justin Driver: And if it's not the Grimm case, then it's another one that the court will take in relatively short order and address this important issue in society. Let me leave you with the idea that even if the Supreme Court of the United States does not get involved and move the doctrine in a way that I would like, it's important to note that not all hope is lost. The Supreme Court of the United States is responsible for articulating a constitutional floor below which districts cannot fall, but nothing prevents other entities from offering students more protection for their, for their rights. And so let me give you a couple of examples. One is, in reaction to the San Antonio Independent School district v. Rodriguez decision from 1973, a case that involved school financing and the way that those schools are funded. The Supreme Court turned away a constitutional challenge that many people thought would have been victorious. Justice Marshall wrote a dissenting opinion, and in his hundredth and final footnote, he said that you should turn your attention to state courts that are interpreting the state constitution and you may be able to get some relief there.
Justin Driver: And that's a strategy that actually worked. You know, in Texas, where this case originated in the 1980s, the Texas Supreme Court started making funding more equitable. It's a long process, but it's one that has brought relief not only in Texas but in other states around the country. You know, Demetrio Rodriguez was the named litigant and he said that it was a bittersweet moment when the Texas Supreme Court got involved because while he was happy that there were poor children who were going to get more money per pupil, his kids were too old at this point. You know, uh, Mark Yudof, uh, an education law scholar, and eventually led universities. He said, "School finance litigation is like a Russian novel. It's long, it's tedious, and everybody dies in the end."
Justin Driver: There are also state legislatures and school boards themselves that are capable of offering students greater levels of protection. In response to a case involving student journalists, several states around the country offered students more protection along these lines. And there are a school boards that say that it's always impermissible to strip search students. And so one of the messages of the book is that it's all of our responsibility to engage in this area, even if the Supreme Court of the United States adheres to it's relatively recent practice of, in my view, turning a blind eye to some of the more pressing issues. If we all are engaged, then we can make sure that our students receive the sort of protections that they should. Okay. With that, I look forward to your questions and your comments and your objections. This is the University of Chicago, you all will tell me why I'm wrong.
Justin Driver: And that's what makes this such a fine, fine institution. There are microphones as well, and I see a question right there. Okay.
Question One: Professor, you mentioned in Ingraham's, I think you mentioned procedural due process in the case of the panel. It seems like the case you're talking about would be substantive due process cases were it to involve the liberty of the, of the student. And I'm wondering are there, is there, are the Courts shy of that, because we're talking about minors or is it, the cases, do they tend to be kind of all over the place and apply, you know, equal protection and so on and so forth?
Question One: Yeah, it's a great question. So, uh, there have been some substantive due process challenges and some of those challenges have been victorious in the lower courts. There's sort of shocks the conscience language and you could imagine James Ingraham as meeting that threshold. Nevertheless, there are some statutes that exist that say that it's always going to be impermissible to go after a teacher for using this corporate practice, this corporal punishment. And so they are in effect a given immunity in this area. And I am aware that people are contemplating bringing some sort of challenge with an eye toward getting the Supreme Court to revisit this issue. I've heard some people float the idea that maybe rather than even substantive due process, this could be vulnerable to an establishment clause challenge, right? If you believe that, they're obviously spare the rod and spoil the child. And this sort of language does appear quite often in the Bible. And so if you could find school administrator saying, this is in effect a religious moment. You know, one of the challenges of writing this book was that it was, this particular part of the book, was it was very hard to find people willing to defend the practice on the merits in writing.
Justin Driver: One of the, one of the small instances where I've found is many people will defend this actually on racial grounds. That is to say that, yes, black students are disproportionate, they receive a disproportionate amount of corporal punishment, but it's often as the hands of black administrators and they say when you were challenging corporal punishment, you are in effect sort of interfering with our racial autonomy and control over our community. How dare you come in here? I find those arguments, holy unpersuasive, but I should say that there are some people who are willing to defend the practice along these racial dimensions. Okay. Thanks for the question. Are there, are there others? I'm going to see a couple of hands and people are making there. Okay. Thank you.
Question Two: For purposes of your Fourth Amendment in the schools analysis, would you consider it to be a different situation, referencing again the Lindsay Earl's case where the school was trying to test anybody who is interested in extracurricular activities, would you differentiate between that situation and a situation where a school requires high school athletes uniformly to undergo testing for steroid drugs?
Justin Driver: It's a really good question. And the Court actually heard a case that was limited to athletes that was decided, I believe in 1995 called Acton. James Acton, where if you were an athlete then you had to submit to drug testing. It was not limited, as you suggested, as steroids. But my answer to the question is yes, I would regard that as being a different matter because it's about leveling the playing field and making sure that people aren't harming their own bodies in an effort to get an athletic edge or potentially harming other people as well. So I would regard that as being a different matter altogether. The Acton case itself, uh, was very unusual because it was a relatively remote part of Oregon and they say that the students are the leaders of the local drug culture, and there was a drug problem with this particular school, and it was limited to athletes.
Justin Driver: And then just a few years later, the Earls decision comes along and, uh, you know, it sort of throws out the reasoning of the Acton decision altogether because extracurricular activities don't seem like they lend themselves to the same sorts of you know, sort of competitive edge issues. So this lead Justice Ginsburg to write a dissent saying, you know, we're talking about extracurricular activities in the Earls' decision. Are we worried about like, you know, the, the band, the tubas running into each other and everything, right? And like the future farmers of America having their livestock get out of control, right? This is not necessary in order to have a safe schools and extracurricular activities. I saw another hand a little bit ago. Here we go.
Question Three: So it seems like a lot of the reason for the Constitution being involved in these that there are state actors at the local level. I'm wondering if what, first of all, what does it take to be a state actor versus not a state actor? And are there tough cases in deciding what, whether that's true or not, and have people that have shaped these decisions attempted to structure around being a state actor?
Justin Driver: Yeah, it's a good question. That's one of the sort of through lines that exists in the book where there is some skepticism about judges getting involved in this area. Many people would say this is an area for local control and, you know, judges are not teachers and they really know what's going on there. And so, you know, in my view, the most important opinion on this particular point is Justice Jackson's opinion in the Barnett decision where he says that schools are subunits of the government. And yes we are judges, but we cannot because of concerns about our competence shrink from our constitutional duties. He says that the school is an especially important place to sort of defend constitutional rights because if we don't defend them in that context, we're going to teach people, teach students, to discount constitutional rights as mere platitudes.
Justin Driver: And it's going to strangle the free mind at its source, he says. As to the specific question of a state actor and where are they? Obviously public schools are going to be covered. Most people would agree that private schools are not going to be covered. Not everybody agrees with that as I found out a couple of days ago. And you know, you could imagine charter schools as being in the middle here. I would view charter schools as being covered by the Constitution and needing to comply with the Constitution of the United States. As I understand charter schools, the idea there is that they don't need to sort of follow every last state law, but I don't view the Constitution of the United States is some mere, you know, bureaucratic piece of red tape. I view this as our founding document and I think that charter schools should have to be, should have to follow the Constitution as well.
Justin Driver: Okay. There's one other question, I think a right here, and there's a microphone making its way and maybe this will be the last one.
Speaker 7: So this is actually a quick follow up on what you just said. So in Illinois, you know, they recently passed the voucher, it's not called a voucher, but the tax credit program that provides taxpayer money for students to attend private schools. Do you think that in any way impacts the right, you know how, because I think the public/private piece gets a little bit more blended, much more so than charter schools when you start talking about vouchers.
Justin Driver: So really a good question. And it's a University of Chicago question as well. We have to think about Milton Friedman here, right? About saying we need to get rid of the public schools and go to the voucher system. The case that springs to mind most readily is the Zelman v. Simmons Harris case dealing with the establishment clause where Cleveland enacted a voucher program that allowed students to take some money to go to, at least in theory, private schools and also religious schools. And the question was, does allowing parents and students to take money that's given directly to them and redeem it at in Cleveland overwhelmingly Catholic schools, does that violate the establishment clause? And the Supreme Court of the United States says, no, it doesn't violate the establishment clause. You know, the money is indirect here. And this is a question that gave many liberals all sorts of anxiety for a long period of time.
Justin Driver: Certainly in 2002 when the case was decided. I actually think that case was correctly decided, though I am a man of the left, I can see some of my former students grimacing here, this, this decision. We've talked about this in class and they didn't like it then and they still don't like it now. And that's okay. Um, you know, one thing that looms large in my mind is, do people think that using the Gi bill or a Pell Grant to go to Georgetown or go to Yehsiva violates the establishment clause? I think most people do not believe that. And I should say as well, some of this may well be informed by my own personal experience. I went to public school through the ninth grade and then my parents who were not Catholic decided to send me to an all boys Catholic high school for 10th, 11th and 12th Grades, and they did it because they thought it was the best education that they could afford. And so it's not a totally foreign concept to me that parents would make the decision to send their kids to a school that doesn't correspond to their own religious preferences because they think that the education is the best they can possibly be.
Justin Driver: Okay. Thank you so much for coming out and I really appreciate it.
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