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(upbeat music) (bell rings) - Hello and welcome to the City Club of Cleveland, where we are devoted to conversations of consequence that help democracy thrive.

It's Friday, September 2nd, and I'm Cynthia Connolly, Director of Programming here at the City Club.

Today's conversation is presented in partnership with Case Western Reserve University, and also part of our "Education, Innovation, and Authors in Conversation" series.

I am pleased to introduce Justin Driver, the Robert R. Slaughter Professor of Law, and counselor to the dean at Yale Law School.

He's the author of the book, "The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind."

Mr. Driver is a graduate of Brown, Oxford, Duke, and Harvard Law School, where he was an editor of the Harvard Law Review.

He clerked for then Judge Merrick Garland, Justice Sandra Day O'Connor, and Justice Steven Breyer, just a few, and Mr. Driver has a distinguished publication record in the nation's leading law reviews.

He has also written extensively for general audiences, including pieces in "The Slate," "The Atlantic," "The New York Times," "The Washington Post," and "The New Republic," where he was a contributing editor.

He is a member of the American Law Institute, and of the American Constitution Society's Academic Advisory Board.

Mr. Driver is also an editor of "The Supreme Court Review."

In 2021, President Joe Biden appointed Mr. Driver to serve on the Presidential Commission on the Supreme Court of the United States, and he is here with us today to discuss the power of the Supreme Court inside the American school system.

Reading the headlines today, it's easy to conclude that American public schools have become hotbeds for cultural anxieties and national identity.

Incendiary topics like race, gender, religion, equality, and even COVID 19 mitigation efforts have shaped constitutional rights around the country.

From intentionally drawing school districts to be more racially diverse, the use of corporal punishment, to whether undocumented immigrants should have access to free public education, our speaker maintains that the Supreme Court has regularly abdicated responsibility in protecting students' rights since the 1970s.

These rulings have lasting impacts both inside and outside the schoolhouse gate, and has transformed public schools into incubators for constitutional interpretation.

So how have courts evaluated things like corporal punishment, random drug tests, and searches of students, and free speech inside the American school system, and what does this mean for our Constitution and our democracy?

If you have questions for our speaker, you can text them to (330) 541-5794.

That's (330) 541-5794.

You can also tweet them @thecityclub, and our staff will try to work them into the second half of the program.

Members and friends of the City Club of Cleveland, please join me in welcoming Justin Driver.

(attendees applauding) - Okay, thanks so much for that very generous introduction.

I am really happy to be in Cleveland today.

I came in a couple of days early, and I was able to go to the Cleveland Guardian Stadium in order to see the newly renamed team play, and it was a beautiful night.

I'm especially glad to be here at the City Club, and that you all think of yourselves rightly as a beacon of democracy.

There are too few spaces where people are able to exchange ideas on the questions of the day.

And this topic that I'm gonna talk about, the importance of public schools is, of course, intimately connected to democracy.

Indeed, one of my old bosses, Justice Breyer, wrote in an opinion involving a vulgar cheerleader who cursed in an off-campus setting, he wrote that America's public schools are nurseries of democracy.

That is perhaps the most lasting sentence that Justice Breyer has ever written, and I'm so glad that he wrote it.

Okay, so I thought I would talk about my book, of course, and I thought that I would talk a little bit about the origins of the project, and then I would give you an overview of what the book is about, and then I would talk about three topics that I particularly care about.

And of course, I then look forward to your questions, your comments, and your objections as well.

Okay, so the origins of the book, you know, as a law professor, sometimes you're sort of casting about for a project, you know, you're looking for a project, and sometimes the project finds you, and this book is definitely in the latter category.

You know, the book may have some of virtues.

Brevity is not among them.

(participants laughing) You know, it's a serious book, and one of the questions I often get is, you know, how long did it take you to write this book?

And the answer to that question is either four years or four decades, depending upon how you count.

You know, I turned my attention to it as a law professor and sort of set aside law review articles, and I worked on it pretty single-mindedly for four years, my wife would say obsessively for four years.

But the origins really do go back to my growing up in Washington DC as a kid.

I grew up in southeast DC, east of the Anacostia River, a predominantly Black neighborhood, and starting at a very young age, in the fifth grade, I traveled from southeast DC to way upper northwest Washington, the most privileged segment of Washington DC, and that journey required me to get on a bus and then take two different subway lines, and have a pretty long walk.

And so I got up at the crack of dawn in order to obtain a fifth grade education, and I thought, "Why in the world am I doing this?

And what opportunities am I acquiring as a result of this daily trek?

And importantly, what opportunities are my friends from my neighborhood missing out on as a result of going to the local schools?"

And so I remember learning about Brown versus Board of Education not long after I was going to school way up in Northwest Washington, and this was in 1985, so three decades after Brown versus Board of Education.

And I also remember thinking there are lots and lots of schools within shouting distance of the Supreme Court of the United States that remain all Black, and Brown versus Board of Education may as well be a rumor in those areas, and that suggested to me that there's often a rather large gap between law on the books and life in the streets.

I'll tell you one more story about, you know, the origins of the book.

I remember my father setting out late one night when I was heading into the seventh grade, and I was sort of curious.

That wasn't typical for him, and he was heading to sleep in his car outside in order to make sure that he would be the first person in line in order to gain access to a junior high school in Washington, DC, you know, the only public school that was the junior high school that he thought would allow me to take advantage of whatever, you know, meager talents I have.

And that story should be simultaneously inspiring and depressing, right?

It's inspiring in the sense that one committed parent can make a difference, but it's also depressing.

It shouldn't require superhuman efforts and sleeping in your car in order to acquire a quality education for your children.

You know, another instance of how this project found me in many ways, when I was a law clerk at the Supreme Court, there were two major Supreme Court cases involving students' constitutional rights.

And Justice Breyer dedicated a tremendous amount of energy to thinking about those cases, because he understood very well that those are among the most important constitutional cases in American society.

One of those cases was a case called parents involved in community schools dealing with the legacy of Brown versus Board of Education and the quest for racial integration in American society.

Justice Breyer wrote a dissenting opinion in that case that was long, and in my unbiased view, utterly convincing.

(participants laughing) We can talk about that in the Q and A if you'd like to.

And the other case was formally titled Morse versus Frederick, but just about nobody calls it Morse versus Frederick, certainly we law clerks did not.

Instead, everybody calls it bong hits for Jesus.

(participants laughing) I'll tell you more about that in a minute.

Okay, so let me offer you an overview of the book.

You know, broadly conceived, I view the book as offering an overview of, an examination, I should say, of two essential institutions in American society, the public school on the one hand, and the Supreme Court on the other.

And the core claim of the book is that it's difficult, if not impossible to understand the one institution without thinking about the other.

And so when you think about the public school, we don't often think of these as legal institutions, but when you step back, as I attempt to do in this book, and offer a panoramic overview of the Supreme Court's jurisprudence involving students' rights, it becomes possible to appreciate the way that these are thoroughly legal institutions.

The Supreme Court has crafted constitutional doctrine that assumes particular contours in the nation's public schools.

And so I have chapters on the freedom of speech.

I have a chapter on religion, thinking about the Establishment Clause and the Free Exercise Clause.

I have a chapter on criminal procedure, thinking about the Fourth Amendment and the Fifth Amendment, unreasonable searches and seizures, and the right to remain silent.

I have a chapter on school discipline in the form of suspensions and corporal punishment.

I have a chapter on equal protection, one dedicated to Brown and the quest for racial integration, and also to other hot button issues including sex separation in schools, trans students and access to restrooms, unauthorized immigrants, and so it's, you know, incredibly important to think of these as legal institutions.

There are more than 50 million public school students in American society, it takes millions of adults to administer these schools, and that means that on any school day, there's roughly one sixth of the American population is in a public school.

It seems to me that that the lessons that students encounter in public schools, they're gonna take with them for the rest of their lives, and so those are vital institutions, vital sites of constitutional interpretation.

And the Supreme Court of the United States has said so in some of its opinions that it's especially important and vital for constitutional rights to be honored in public schools, lest our founding document be understood to be, you know, mere platitudes.

Okay, so that's the public school.

And then I'm also interested in thinking about the Supreme Court's role in American society.

It's a dominant view in legal academia that the Supreme Court is a modest institution, one that is marching in lockstep with the attitudes of the American people, that it's sort of frail, it can't do very much, it's just reflecting larger attitudes in American life.

I think that offers, for better or for worse, an inaccurate view of the Supreme Court's power for resisting majoritarian impulses.

And I've identified a number of major Supreme Court opinions where the court has resisted what a majority would've wanted.

Let me just give you one example right now of this phenomenon at work.

There's a case many of the lawyers in the audience will know called Barnett versus West Virginia, a case from 1943.

The issue there was whether it was permissible to expel Jehovah's Witnesses when they refused to recite the Pledge of Allegiance.

It was an open question.

Indeed, the Supreme Court had relatively recently said that that was permissible to do.

It's simply for saying, I cannot recite the Pledge of Allegiance.

For Jehovah's Witnesses, it interferes with their religious commitments.

Can you expel students?

And that was the dominant practice.

Schools in all 48 states at the time were expelling Jehovah's Witnesses, and you can imagine.

This is at the height of World War II.

Patriotic sentiment is running incredibly high, and people viewed folks who were refusing to recite the pledge as traitors to the nation.

Nevertheless, the Supreme Court of the United States steps in in a magnificent opinion by Justice Robert Jackson, and he says that this is impermissible.

He says that the freedom of speech involves a corollary negative right, the freedom not to speak, and that in effect, it's un-American to require people to say something that's not in their hearts.

And as many of you know, there are lots of students who do not wish to recite the Pledge of Allegiance, thinking about Colin Kaepernick, perhaps partly inspired by him.

And that decision was efficacious in making sure that students could receive an education.

Okay, so lemme talk about three topics that I care about particularly, and I hope that you'll care about as well.

One is the freedom of speech, and if you're gonna talk about democracy, you have to talk about the freedom of speech, the Fourth Amendment, I'm thinking about suspicion list drug searches here, and then finally, I'll talk about corporal punishment and the Eighth Amendment's prohibition on cruel and unusual punishment.

Okay, with respect to the freedom of speech, the iconic case in this area is from 1965.

That's when the underlying dispute arose, where in December of 1965, students in Des Moines, Iowa wished to wear black armbands to school in protest of the Vietnam War.

School administrators get wind of this plan and they say, "Oh no, that is too hot of a topic.

We have had graduates of Des Moines High School die over in Vietnam, and if you wear these black armbands, his classmates and his friends who are here are gonna take you as dishonoring his memory and his sacrifice, and so in order to keep the peace, you cannot wear these Black armbands."

The students nevertheless wear them, and they are sanctioned, and the question is, does that violate their free speech rights?

The Supreme Court in an opinion by Justice Fortis writes a really wonderful opinion.

Indeed, it gives me the title for my book.

He says, "It can hardly be argued that students shed their constitutional rights at the schoolhouse gate."

That is, you know, soaring language, and very important.

He says that, Justice Fortis does, when students exchange ideas on the topic of the day, that's not some sort of distraction.

Instead, that is a vital part of the educational process itself.

I should emphasize that it's the Tinker family, Mary Beth Tinker and her brother John, who were wearing these black armbands.

And one of the things that I try to do in the book is really shine a spotlight on the tremendous amount of courage that is required on behalf of students and their families in an effort to vindicate their rights.

The Tinker household was pelted with harassing phone calls and nasty letters, and someone took a bucket of red paint and splattered it on the front door of the Tinker household.

The evident implication was that only a communist, a red would dare to oppose the Vietnam War.

And nevertheless, the Supreme Court issues this opinion that vindicates students' constitutional rights.

It didn't go as far enough as I would've liked, and we can talk about that in the Q and A if you want to hear about some of its shortcomings, but it was a really momentous step forward.

There was a dissenting opinion in this case, written by Justice Hugo Black.

He felt extremely strongly that this was a misguided opinion.

He delivered his dissent from the bench for more than 20 minutes.

Typically, a dissent just appears in the US reports, and so delivering the dissent from the bench signals unusually vehement disagreement.

And he said, "I want it known that I disavow any sentence, any word, any word, any part, any sentence of what the court does today."

And he was sort of like frothing at the mouth, he was so exorcised about this.

And Chief Justice Warren is purported to have said, "Old Hugo really got caught up in his jock strap on that one, you know?"

(participants laughing) And if he did get caught up in his jock strap, people say it's because he had a grandson who produced an underground newspaper that was critical of school administrators, and he was suspended, and Justice Black wrote a letter to his daughter-in-law saying the school did exactly the right thing here.

Students are there to learn and not to teach, and in effect, you better not sue that school district.

This is an irresistible story, and I included in my book, of course, but it is a mistake to view Justice Black's dissent as merely one cranky grandfather's, you know, sort of fit of pique.

Instead, I found polling data that suggested that a majority of Americans thought that Justice Black had the better of the argument, and that students should not be able to express themselves on the topic of the day, and so this is yet another instance of where the Supreme Court has protected sort of counter majoritarian interests.

So that's a high moment for the court.

Relatively recently, the court has done a less good job in this area.

When I was a law clerk, there was the Morris versus Frederick, the bong hits for Jesus case.

In that case, Joseph Frederick was a high school senior in Juno, Alaska, and the Olympic torch was making its way through Juno, Alaska down Glacier Avenue, and some teachers had allowed the students to witness this great occasion, and so they released the students from the class.

Joseph Frederick parked himself, you know, across the street from the school, got out, and unfurled a 14 foot long banner that read bong hits for Jesus.

The principal sees the banner, marches across the street, snatches it out of his hands, and then suspends him for 10 days.

And the question is, does this violate his free speech rights?

Chief Justice Roberts wrote the opinion for the court saying the principal was justified.

If the speech in question is reasonably believed to promote illicit drug use, then it's permissible to punish the student for the speech.

That's what the chief writes.

It's very unusual from a First Amendment perspective, because one thinks about the First Amendment as being viewpoint neutral.

You're not permitted to silence one side of the debate, and if you can have people who are opposed to drugs offering their views, you should also permit people to say, we should consider changing our drug laws.

Justice Stevens wrote a dissenting opinion.

It was powerful then, and it's more powerful still.

Justice Stevens said, "I can remember from my youth, the days of prohibition, and that what is illegal today can become legal tomorrow, and how does that process work, but for people exchanging their ideas and saying we need to reconsider these matters?"

And so one can quite conceivably view Joseph Frederick as attempting to participate, however inarticulately, (participants laughing) in a growing debate about the legality of marijuana.

And as you all know, over the last 15 years, there's been a sea change in approaches to marijuana.

And so that was, in my view, a deeply misguided decision by the Supreme Court of the United States.

Okay, I'll be very quick here on the Fourth Amendment.

One of the issues that's on my mind is suspicionless drug searches where students are required to offer urine samples in exchange simply for participating in extracurricular activities.

From a traditional Fourth Amendment perspective, one should be sort of, you know, scandalized by this, because this is a dragnet search where there's no individualized suspicion of wrongdoing.

The government's just sweeping up a bunch of information, hoping that they can discover some wrongdoing, and that should violate Fourth Amendment perspectives.

Nevertheless, the Supreme Court in a decision called Earl said that this passes constitutional muster.

We have a serious drug problem in American society, and that's often happening at schools, therefore, the schools can do what they wish.

That's a misguided opinion, from my perspective.

The last case that I'll speak about is one called Ingraham versus Wright, and that's from 1977, and it's the issue that I care the most about that I've written in the book, and think that is in the biggest need of change.

It's the most glaring injustice that exists in American schools.

Okay, so here we're dealing with a student named James Ingram, who's a junior high school student in Miami, Florida.

He's at a school assembly on the stage.

He is instructed to get off of the stage.

He does so with an insufficient sense of alacrity, and for that pretty classically adolescent form of misbehavior, he is summoned to the principal's office where he is meant to receive five licks in the parlance with a two foot long wooden paddle.

When James' turn emerges, he, you know, protests his innocence, and for that act of resistance, there are two assistant principals, and they grab him, and one is holding him down by his arms as he's bent over the principal's desk, and the other vice principal's holding his legs, and James receives not five licks, but 20 licks.

And this beating, for lack of a better term, is so savage that James seeks medical attention, and a doctor prescribes pain killers, laxatives, cold compresses, sleeping pills.

He's in such agony that three days later he returns, and at this point, there's a doctor's notes that say that he has a bruise that is six inches in diameter, that's tender, purplish, and oozing fluid as well, and the question is whether this violates the prohibition on cruel and unusual punishment.

We should say that James is, James's incident is one of a larger reign of terror that existed at Charles Drew Middle School, where students were beaten for sitting in the wrong seat, for not having the right gym equipment, and there were these mass paddling sometimes as well, where they would say, "You students in the back are acting up, and therefore the whole class is going to get it."

And in the school district's effort to defend the practice, they ended up making matters worse.

There was a principal from Miami Dade High School who said, "No, you know, we don't use corporal punishment in this school.

We have a predominantly Jewish student population, and they respond to oral persuasion, and there's strong backup at home as well."

And the unstated implication is that the students at Charles Drew Middle School, I should say an all Black school, respond only to brute force.

And so if you're a lawyer, these are an ideal set of circumstances to bring a case to challenge this practice.

Nevertheless, a five to four decision written by Justice Powell says that this does not violate the Eighth Amendment's prohibition on cruel and unusual punishment.

He says that this isn't even punishment for purposes of the Eighth Amendment.

The punishment that the Constitution had in mind, Justice Powell says, stems from a criminal conviction, and so James Ingram hasn't been convicted of anything, therefore, he has no claim.

That seems to me to be a deeply misguided decision, and I care about it not merely because of its historical import, but because it's an ongoing practice in American schools today.

There are something like 18 states that retain corporal punishment, and in some ways, that overstates its prevalence, because just five states account for more than 70% of the instances of corporal punishment.

Those five states are Alabama, Arkansas, Georgia, Mississippi, and Texas, and it will not come as a surprise to folks to know that students of color receive more than their share of, you know, corporal punishment.

So listen, these are difficult times at the Supreme Court of the United States.

When I was writing some chapters in this book, I thought that my old boss Judge Garland was going to become Justice Garland, and those were especially, you know, enjoyable chapters to write, but I do wanna suggest, even though the current court is not how I would appoint it, that all hope is not lost, and that it may be possible to bring together a coalition of liberals and libertarians to find common ground on these issues.

If you're a libertarian, of course, you have a skepticism of state authority.

And for the three issues that I've highlighted today, thinking about the First Amendment, you know, you shouldn't allow the state to silence speech.

The Libertarians should be sympathetic to that cause.

For the Fourth Amendment, the idea that the state in the form of the public school can collect, you know, sort of bodily fluid simply in exchange for participating on the debate club, that is an outrage.

And finally, in what instance is the state exercising dominion over people in a more powerful way than taking a foreign object and allowing government officials in the form of public school teachers to strike students?

So I want to suggest that all hope is not lost.

Now, some of you all, I'm gonna say in conclusion, may disagree with what I've said today, and that's okay.

You are in very good company if you disagree with what I've said.

Justice Thomas seems to believe that students have no constitutional rights whatsoever.

He said in the bong hits for Jesus case that Tinker was wrongly decided, and we really need to reign back these students' constitutional rights.

It's not just Justice Thomas.

Judge Posner, in a free speech case, said, "No, we shouldn't have sort of free speech for students, or at least we should be very, very careful.

We should be very skeptical."

He says the this is a quotation, "The contribution that kids can make to the marketplace and ideas and opinions is modest."

Judge Posner is one of the most revered jurists in the post-World War II era.

On this one, in my view, he's incorrect, and that the stronger view was offered by his colleague, Judge Ilana Rovner, and it's with her words that I wish to end my remarks.

She says, "Youth are often the vanguard of social change.

Anyone who thinks otherwise has not been paying attention to the Civil Rights Movement, the Women's Rights Movement, the anti-war protests for Vietnam and Iraq, and the 2008 presidential primaries, where the youth voice and the youth vote are having a substantial impact.

The young adults to whom the majority refers to as kids and children are either already eligible or a few short years away from being eligible to vote," pardon me, "to contract, to serve in the military, and to be tried as adults in criminal prosecutions.

To treat them as children in need of protection from controversy is contrary to the values of the Constitution."

Thank you very much.

(participants applauding) - We are about to begin the audience Q and A. I'm Cynthia Connolly, Director of Programming here at the City Club.

We are with Justin Driver, author of "The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind."

We welcome questions from everyone, City Club members, guests, students, and those joining via our livestream at cityclub.org, or our radio broadcast at 89.7 Ideastream Public Media.

If you'd like to tweet a question, please tweet it @thecityclub.

You can also text them to (330)541-5794.

That's (330)541-5794, and City Club staff will try to work it into the program.

May we have the first question please?

- Good afternoon, I'm Merle Johnson.

I'm on the State Board of Education, and I happen to be wearing a T-shirt that says Stephanie Tubbs Jones School, and in Cleveland, Councilman Kevin Conwell has been on a mission to rename Cleveland schools that were named after slave owners.

And so my question has to do with when you rename a school because it's named after a slave owner, do you consider that just symbolic, or is there a deeper meaning or purpose for changing names that have been named for slave owners?

- Thank you very much for the question.

I appreciate it, and I appreciate you bringing us to Cleveland where we are today, and you know, one of the things that's in my book, by the way, the end papers feature a map of the United States.

And you know, I was trying to tell the story of this being a national event where constitutional disputes have arisen all over the country, and you will see a dot, you know, right here in Cleveland, Ohio that marks the Zelman versus Simmons-Harris case involving vouchers and an Establishment Clause violation, and so I was trying to suggest by doing that, that almost certainly, you know, a city in your state has had a major constitutional controversy, and your question raises the issue of controversies that are unfolding all across the nation as we have a reckoning with the racism of our past, and what do we do with slave owners?

You know, my university recently renamed one of the colleges that was after Calhoun for the reasons that you state.

I would say is it merely symbolic?

One could answer that in a couple of different ways.

One is to say, well, even if it is symbolic, symbols matter.

Indeed, Justice Frankfurter used to say, quoting Justice Holmes, symbols matter.

We live by them, you know?

And so, no, I wouldn't say that, you know, this is just some modest thing.

Obviously, the renaming of the Cleveland baseball team is something that matters a great deal to members of our community, and renaming is not something that should be undertaken lightly in my view, but it's also something that is a power that should be used when appropriate, so thank you for the question.

- Good afternoon.

We have a text question.

We have seen the onslaught of book bans in public school systems stemming from critical race theory attacks.

Is this a threat to our First Amendment?

- Wonderful question.

You know, there are a couple of different ways to understand it.

One is that there are these book bans that have been happening in public school libraries.

There's a Supreme Court case that I write about in the book called Pico, where conservative activists got together and were irritated about some of the books that existed in the public school library.

One of the reasons that they were irritated was that there was a book that noted one of the founding fathers was a slave owner, and they thought, well, this is a ridiculous thing to emphasize in American history.

The Supreme Court of the United States did not issue a clean holding involving the First Amendment, but certainly some of the justices did see First Amendment implications there, and the lower courts have consistently, not uniformly, but consistently been skeptical of efforts to sort of set aside particular books in the absence of shelf space, and of course, these issues are happening today involving not only race, but also sexual orientation, and things of that nature.

The question also spoke about critical race theory, which places limitations on how teachers can go about applying their trade.

And traditionally, school districts have enjoyed a great deal of autonomy over curricular matters, and so there's going to be something of an uphill battle in the legal challenges to these matters.

I would've thought that the most profitable way to mount a legal challenge would be a long void for vagueness notions, that is to say that if a teacher can be uncertain as to when they are violating an anti-CRT law, then the person's not on notice, and that creates uncertainty in our legal order.

And so some of these measures, as I understand it, are phrased quite broadly to say, well if there's, you know, if somebody feels uncomfortable about a topic, how does one know whether students feel uncomfortable?

I suspect that my students are uncomfortable all the time, you know?

(participants laughing) And I hope I'm not violating the law.

I mean, yeah, okay, thank you.

- Good afternoon, thank you for being here.

My name is David Glassner.

I'm the superintendent of the Shaker Heights City School District right outside of Cleveland.

You mentioned vouchers just a couple minutes ago, and as you're probably aware, in the state of Ohio, there is currently litigation related to vouchers and school choice.

I know the Supreme Court, based on recent decisions, seems like they're inclined maybe to support expansion of school vouchers.

I'm kind of curious if you could share with us any, either predictions you have, or kind of the lay of the land in terms of the future of school vouchers in this country, and also any suggestions, guidance you might have for folks who are interested in maintaining support for our public schools system.

Thank you.

- Well, first, thank you for the important work that you do.

Yeah, there's this historic case out of Cleveland in 2002.

There, the question was whether permitting students to use vouchers to go to religious schools violated the Establishment Clause, and it was an open question.

This was decided when I was in law school, and people were very uncertain as to how the case was going to come out.

And it was a five to four decision to say that in effect, it's permissible for schools to, for school districts, or for cities, I should say, to offer students from modest families these sorts of vouchers.

They were used overwhelmingly at religious schools, and particularly Catholic schools, and that made many people uncertain, and the dissenters felt very strongly that this case had been incorrectly decided.

President George W. Bush thought that this is a heroic decision.

He referred to this as the Brown versus Board of Education of our time.

It's a very interesting formulation.

(participants laughing) You know, many people would see in at as an exaggeration, but there's also a way in which you might think of it as being unwittingly apt, that is to say that Brown may have signaled a tremendous transformation in American society with respect to the schools, but that promise has gone unrealized in many of our school districts where racial isolation is an all too common phenomenon.

And vouchers outside of Cleveland haven't really sort of taken off in a really dramatic way and everything, and so that's how you might see this as, yeah, maybe it was the Brown versus Board of Education of our time.

I'm skeptical of that claim.

The other thing is to sort of trace how this issue has moved going forward.

Again, in 2002, we were thinking about whether it was permissible for cities to adopt these sorts of programs, and without violating the Establishment Clause.

These days, we're thinking about whether in effect, states must fund religious schools if they are funding private schools in the form of vouchers and things of that nature, so just last term in June, there was a case out of Maine called Carson versus Macon, where Maine, because it's quite rural, there are some places that don't have local public schools, and they pay for people to go to private schools, and they wished not to have to send people to religious schools, and the question is, does that violate the Constitution?

And the Supreme Court said yes, it does violate the Constitution.

It violates the Free Exercise Clause.

It is an intrusion, an incursion on the families of the students who wish to send their children to religious schools, to in effect, you are biased against religion.

So here we are in the span of two decades, it was an open question as to whether schools, whether cities may do this, and now, many people would say they must do this.

So there's been a sea change in this area, and you asked about the horizon.

The next question is actually about charter schools, right?

If lots of different places can come up with a charter, and get a charter from the state, well, why can you exclude the Baptist church from getting a charter?

So that's the next horizon.

That's the battle that's on the horizon.

Okay, next question please.

- Thank you, professor.

Returning to the void for vagueness notions with respect to critical race theory, my understanding is that they build upon the notion that certain approaches might make some of the students feel uncomfortable.

Well, the opposite's also true.

There are gonna be a lot of people who, when they see schools trying to rewrite the treatment of their ancestors, and to make them all seem like they were just very happy on the plantation, that that will make people feel uncomfortable.

I'm curious about whether you can crystal ball how that conflict's gonna play out in the courts.

- It's a very interesting point to suggest that there are feelings of discomfort that, you know, can be felt all the way around.

So you know, and I guess I had returned to what I said earlier.

It's an interesting idea to think about whether people being uncomfortable in a classroom is always something to be avoided, or whether there can be some growth that comes from that.

Are we trying to, and the questioner says maybe some measure of discomfort is inevitability in American classrooms.

You know, earlier, there were many people who felt very strongly about religion that expressed deep discomfort about, you know, the Holt common reader, and there were suggestions that, well, when you ask somebody to imagine what it's like to be on Mars, you're asking them to engage in some sort of like, I don't know, seance or, you know, some sort of, you know, use their sort of extra sensory perception, and that seems like the devil.

There were people who had concerns about challenging traditional gender norms, so the idea that a man would be cooking a meal made them feel uncomfortable, and they cited religion for these reasons.

They said it makes them feel uncomfortable.

The courts, the lower courts, not the Supreme Court, the lower courts have beat back these ideas, and said in effect like, if you are have sufficient discomfort with the pedagogy, then people have taken it to say you might consider homeschooling your children.

And there has been an explosion of homeschooling over the last 30 years, and one of the arguments that I make in the chapter on religion is that that issue has served as something of a release valve for conflict over religion in our public schools, people who otherwise may have been filing lawsuits saying, you know, you're harming my religion have pulled their children from the schools, and so the temperature has been lowered on these sorts of topics, although the most recent decision from the Supreme Court in this area involves a praying football coach, Coach Kennedy out in Washington state, Kennedy versus Bremerton School District, where he would go to midfield and, you know, kneel down to say a prayer.

And in my view, the court has done a good job in this area of being very strict with school-sponsored prayers.

Over a long period of time, it's sort of, those were pervasive when some of you all were in school as children, and we've done a good job in that area, and this Kennedy decision is deeply wrongheaded, in my estimation, and it brings the scourge of sort of religious, you know, indoctrination, it invites it back into our public schools where it had been sort of, you know, kept at bay for a long period of time.

Deeply misguided decision, please.

- Thank you for being here today.

I've heard it said that the way that Ohio goes, so goes the country, and in Ohio, we're seeing a lot of conservative activism at the school board level.

So in central and southern Ohio, we have recently seen organizations bringing up policies and having school boards adopt policies for release time for religious instruction.

We've also seen churches starting schools in their basements and applying for charters.

And there have been a number of pronoun policies that cite the PPRA, the Pupil Privacy Rights Act, I believe it is, as a rationale for outing students who express their pronouns in their schools.

And the ways that the districts are doing it is they're saying we are going to ask for parent consent in order to respect your pronouns.

I'm asking on behalf of districts and administrators and school board leaders, how would you recommend the leaders of our schools respond to these pressures that are really coming from outside of our communities and outside of our districts?

And it's really a politically motivated action, but it's putting a great deal of pressure on people, and it's getting, it's taking us away from teaching, so can you give some recommendations on how to respond?

- It's a really wonderful question.

I appreciate you raising the importance of school boards in American society.

You know, Steve Bannon said just a few years ago that the key to retaking the nation runs through America's school boards.

Now, I disagree with Steve Bannon about many things, (participants laughing) but he and I have an agreement that the school boards play a pivotal role in our nation.

One of the things I want to say to you is that I've focused my attention on, you know, the Supreme Court's role in shaping America's public schools, but you know, your question very helpfully reminds us that the Supreme Court is responsible for articulating a constitutional floor below which school boards cannot go, but nothing prevents school boards, and state legislatures, and say, state supreme courts from offering additional layers of protection to students.

And I identify instances where, you know, school boards have gone beyond what the Supreme Court says as to what can be done, and there, you know, could well be some value in having school boards talk about how they think about trans students should be treated, and making it incumbent upon teachers to recognize students' gender identities.

This is an incredibly important issue that is on the minds of many people.

I write about case involving Gavin Grimm who wished to use the bathroom that's congruent with his gender identity in relatively rural Virginia, and you know, there are lower courts that have been addressing these issues, and often they are using the Equal Protection Clause in order to say that it's incumbent upon schools to make this work.

Oftentimes, it is, as you suggested, you know, the parents, and outside forces, and if you ask the kids, it's no big deal.

So yeah, so I would encourage people to think about the power of their own school boards as responding to this.

Thank you.

- Thank you.

There are many attacks on public education coming from many directions, and seems to be a movement to weaken and even get rid of public education, so I'm wondering, is there a constitutional right to free public education at the federal level?

- Thank you for that very subtle and thoughtful question, very carefully articulated.

So the Supreme Court of the United States entertained a case in 1973 called San Antonio Independent School District versus Rodriguez.

It was a case that involved school financing where people in the poor part of town received a lot less money per pupil than did students in the wealthy part of town.

Many people thought heading into that decision, that it was a foregone conclusion that the court would recognize that these funding disparities created a constitutional issue, you know, either as involving a classification problem with wealth as a suspect classification, or to your point, education as a fundamental right.

The Supreme Court did not recognize education as a fundamental right.

It has not squarely closed or at least slammed the door shut, but it has not recognized education as a fundamental right, even though I think that if you were to stop someone on the street and say, you know, "Does the Constitution provide for a right to education?"

They would say, "Of course," you know?

But that's not how the Supreme Court has seen it.

The question was so, you know, articulately framed, because you asked about whether there's, you know, a federal constitutional right, and it hasn't been recognized.

There are some opinions that might make you think that there is some right to be able to access education.

One is the Plyler versus Doe decision from 1982, where Texas sought to exclude unauthorized immigrants from its public schools, and the question is, does that violate the Constitution?

The Supreme Court in a five to four decision said yes, that measure does violate the Constitution.

And you know, they drew a distinction between the Rodriguez decision, which was nine years earlier, and said, well there, in effect, the people in the poor part of the town were receiving a, you know, less good education, but they weren't receiving no education at all.

And that suggests if people are receiving no education at all, that raises a constitutional issue, so you know, the court in Plyler versus Doe did not articulate, you know, there is a fundamental right to education, but maybe you can sort of squint and get your way there.

The last part of my answer to your question is, well, you asked about the federal right, but what about state courts, interpreting state constitutions?

And that has been a more profitable way to go, where litigants are saying even if there's not a federal right to education, there is a state right, which many state constitutions do recognize, and so that has led to greater amounts of relief.

There's a, you know, an esteemed judge on the Sixth Circuit, Judge Sutton, who has written about this phenomenon.

He's written a couple of books about federalism, and one is called "51 Imperfect Solutions."

And so Judge Sutton is one of the very fine jurists in the nation.

I mean, I disagree with him about lots, but he's a very fine mind, and you know, I commend that book to you, not quite as much as I commend "The Schoolhouse Gate," but, (participants laughing) but it's pretty good.

(participants applauding) Thank you.

(participants applauding) - Thank you so much, Justin.

I feel like I had a little bit of a lesson here too in Supreme Court cases and education.

That was very, very well done.

Today at the City Club, we have been listening to a forum, part of our "Authors in Conversation" series featuring Justin Driver, author of "The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind."

A big thanks to our partners in this series, Cuyahoga Arts and Culture, the John P. Murphy Foundation, and the Cuyahoga County Public Library.

Today's forum is also part of our education innovation series in partnership with Nordson, and was presented in partnership with Case Western Reserve University.

We're grateful for all of you for your continued support.

We would like to welcome guests at the tables hosted by Cleveland State University's Center for Educational Leadership, Marshall College of Law and College of Education and Public Affairs, the Cleveland Teachers Union, the Cleveland Transformation Alliance, MC Squared Stem High School, Nordson, the Northeastern Ohio Education Association, and Sankofa Circle, Ellipses, and Wickliffe High School.

Next Friday, September 9th, we'll be joined by Dr. Peter Linneman, Albert Ratner and Dr. Michael Roizen, authors of the book, "The Great Age Reboot: Cracking the Longevity Code for a Younger Tomorrow."

With new scientific breakthroughs and cutting edge telehealth technology, the human lifespan is expected to continue to increase well past 100 years old.

Is our society ready?

Moderating the conversation is Dr. Stephanie Brooks, Dean of the College of Health at Cleveland State University.

You could find out more about this forum and others at our website, cityclub.org.

And that brings us to the end of today's forum.

Thank you once again to Justin Driver, and thank you, members and friends of the City Club.

I'm Cynthia Connolly, and our forum is now adjourned.

(bell ringing) (participants clapping) (upbeat music) - [Announcer] For information on upcoming speakers or for podcasts of the City Club, go to cityclub.org.

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