Students in masks at a protest

A school board censures one of its members. A public high school football coach is forbidden to pray with athletes following games. A trans student is denied access to the boys’ restroom after a school board changes district rules.

All these civil rights cases — born in education spaces — have worked their way up to the U.S. Supreme Court in the last year. A Virginia school board’s appeal to reinstate policies allowing gender-only restrooms was rejected by the high court in July. Yet all the cases have implications, not only for how students are educated, but for how all Americans live.

“The issues that divide American society often appear in public schools, and then the Supreme Court will weigh in to resolve these divisive constitutional questions,” said Yale Law School Professor Justin Driver, an expert on educational law who spoke recently at the College of Education and Human Ecology.

Indeed, no other institution touches the American consciousness more. On any given day, one-sixth of Americans are in a public school, Driver writes in The School-House Gate: Public Education, the Supreme Court and the Battle for the American Mind.

“The civil rights movement and its legacy is all around us,” Driver said.

Leaders at a Martin Luther King event
Board of Trustee member Reginald A. Wilkinson, author Justin Driver, Professor Emeritus Philip “T.K.” Daniel, Dean Don Pope-Davis and alumnus and principal Todd Walker at the Martin Luther King event

Look no further than Central High School — now the site of the Center of Science and Industry, or COSI, in downtown Columbus, Ohio. In 1971, high school students across the district challenged the paucity of Black history taught in their classrooms, culminating in protests after a Black History Week assembly was cancelled at Central High.

The unrest spilled into the school cafeteria, where a few students overturned tables and broke windows. As many as 150 pupils were suspended for 10 days. One of them, Dwight Lopez, maintained his innocence but was denied the opportunity to answer the charges. Such policies, Driver’s book points out, denied accused students the protections given to a common pickpocket.

The Supreme Court’s decision to uphold Lopez’s and other students’ right to due process — in their case, hearings that allow them to answer charges against them – made front-page news in The Columbus Dispatch in 1975. But few grasped the magnitude of the ruling.

“It's an extremely significant decision,” Driver said. “It's possible that had Goss v. Lopez come out the other way that students’ constitutional rights would have been nipped in the bud after all.”

Striking a balance: Students’ rights versus order

In fact, the high court rarely has ruled in favor of student rights. It has upheld search and seizure policies that violate the U.S. Constitution outside of schools; has buttressed zero tolerance policies that allow intrusive drug testing of students not suspected of using drugs; and as recently as 1999 has dialed back states’ efforts to implement racial desegregation measures, diluting the impact of the Court’s momentous 1954 Brown v. Board of Education decision.

Sometimes, however, the Court moves the needle: It did in the Lopez case, but also in 1969, when it upheld the First Amendment rights of three Des Moines students suspended for wearing anti-war armbands at school.

“It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the school-house gate,” Justice Abe Fortas wrote in the majority opinion of Tinker v. Des Moines.

Running a school means striking a constant balance between student rights and order, said Todd Walker, K-12 director and high school principal at Columbus Africentric Early College campus, who earned his PhD in educational policy and leadership in 2012 from Ohio State’s College of Education and Human Ecology.

“The Constitution is evolving…so we have to be flexible,” said Walker, who will soon graduate with a law degree from Capital University. “I think it is important for administrators to have at least a foundational understanding of the Constitution as it applies within the educational setting, because as society evolves, you have to be able to understand how to navigate complex issues — respecting students’ rights, but also maintaining order in a school environment.”

“You don't want to be Goss versus Lopez,” Walker said.

Walker learned the principle of “staying out of the case law" from his one-time faculty advisor, Professor Emeritus Philip T.K. Daniel, who has written extensively about education law and still teaches graduate students the legal issues they’ll encounter as principals, school psychologists, school counselors and special education teachers.

“The baseline of what I'm teaching, because all of them are in positions of making decisions, is to make supportable decisions,” Daniel said. “And the best way I know how to make supportable decisions is with legal foundation education” — learning inside-out the education regulations and case law like Goss v. Lopez and Tinker v. Des Moines.

“When you walk into a classroom, when you walk into a school building, when you walk into a meeting with parents — what is it that you know?” Daniel said. “Because you have to know as much as you possibly can in order to be able to make a supportable decision.”

Corporal punishment of students: Still legal in 18 states

Work still must be done to correct legal precedents that strip students of their most basic rights, Driver said. Notably, corporal punishment remains legal in 18 states.

“It's outrageous (that) the lone remaining group of people in American society who can be struck by governmental officials for refusing to follow directions are public school students,” he said.

One of the most egregious cases in the country’s history, Driver said, was handed down in 1977, following a school beating so severe that it twice sent a Miami eighth-grader to the hospital with a hematoma. The Court ruled in favor of the school principal, upholding his right to administer even harsh physical discipline.

“The idea that the Eighth Amendment has no meaning in public schools is outrageous in my view,” Driver said, “and I very much hope that the Supreme Court will revisit that topic. The jurisdictions that retain the practice at this late date are unlikely to abandon it of their own volition.”

Author Justin Driver speaking at Ohio State
Yale Law School Professor and author Justin Driver speaks at Ohio State University.

In fact, five states are responsible for 70% of the nation’s corporal punishment, and Black students receive more than twice as much physical discipline as their counterparts. (Ohio outlawed the practice in 2009; it was the 13th state to do so.)

“I do view this very much as a civil rights issue for our time,” said Driver, who served as a law clerk for Supreme Court Justices Stephen Breyer and Sandra Day O’Connor, as well as Federal Circuit Judge Merrick Garland.

Even conservative justices who take a textual approach to interpreting the Constitution should be embarrassed by the Ingram v. Wright decision, Driver said, because its rationale of cruel and unusual punishment stemming from criminal conviction doesn’t appear in the Constitution.

“This issue is incredibly important and it’s urgent,” he said. “Many people are unaware of the fact that corporal punishment continues to exist in this great nation of ours. So, if I have any single hope for my book, it's that it will elevate the salience of this topic.”

Teaching students their constitutional rights

The danger of having two civil rights standards — one for schools and one outside of them — is that our youngest citizens cannot truly grasp the liberty the Constitution imparts.

“There is almost no more important work than the work that we do of shaping minds and hearts in schools,” Walker said of his job as principal. “Ensuring that you're doing that and respecting individual persons, I think, is critical.”

“Schools are where we teach kids, among other things, what it means to be an American, and those basic, foundational, Constitutional concepts that should apply irrespective of race, gender or national origin,” he said. “What we expose kids to and what we limit says a lot about what we value in terms of the Constitution and the extent to which students have these rights.”

Not honoring constitutional rights in schools teaches a dangerous lesson about the power of institutions, Driver said.
“You don't have to just take my word for it,” he said. Justice Robert Jackson wrote in 1943 that it is especially important for schools to honor civil rights, lest students learn that Constitutional principles are “mere platitudes."


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