Academic journal article The Yale Law Journal

Equality of Opportunity and the Schoolhouse Gate

Academic journal article The Yale Law Journal

Equality of Opportunity and the Schoolhouse Gate

Article excerpt

The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind




INTRODUCTION                                                       2305
  I. BOOK OVERVIEW                                                 2310
     A. Comprehensive Coverage and Approach                        2310
     B. Strengths and Major Contributions                          2312
     C. The Cutting-Room Floor                                     2315
 II. THE RIGHTTO EDUCATION                                         2319
     A. San Antonio v. Rodriguez: School Funding's Impact on the   2320
        Right to Education
        l. Implications Well Beyond Money                          2320
        2. Decades of Scholarly Outrage                            2323
        3. Imagining an Alternative Outcome                        2324
     B. Goss v. Lopez: Suspension as a Deprivation of a Right to   2329
     C. Plyler v. Doe: The Unavoidable Tension Between Access and  2333
        the Right to Education
     A. Parents Involved and the Spirit of Brown                   2337
     B. Implementing Brown: "It's Not the Bus. It's Us."           2341
     C. The De Jure/De Facto Illusion                              2346
CONCLUSION                                                         2353


Justin Driver's The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind excels in two key respects. As a book about education law, it weaves together disparate doctrines and discrete issues into a cogent whole. This is no small accomplishment, given the broad spectrum of questions the Supreme Court has addressed in schools: racial segregation, funding, immigration, free speech, religion, corporal punishment, suspension, and LGBTQ rights. Reviewing over a century of cases, Driver highlights compelling themes that allow the reader to see the Court's education cases as a long, ongoing conversation about the extent to which the Court must defer to educators while also protecting students' rights and enforcing the Constitution. Given the substance of these cases and their wide-ranging impact, Driver argues the Court's education cases have been underappreciated and are, in fact, potentially the most important venue in which the Court acts. (1) The Schoolhouse Gate puts education law on the map.

As a book about constitutional law, Driver's work may be even more significant. Driver aims to contest the growing conventional wisdom among academics that the Supreme Court is primarily a conservative institution that merely follows public opinion and, thus, does not play a major role in shaping society. (2) He details a number of major school cases--from segregation to free speech to immigration--in which the Court's decisions were entirely at odds with public opinion at the time they were released but managed to shift public opinion over the course of time. (3) He also recasts a number of cases that others have critiqued as failures, (4) convincingly arguing that the Court threaded a needle in those cases and delivered moderate opinions so as to avoid social backlash while still producing doctrinal victories for student rights. (5) In sum, for those not yet willing to give up on the Court, The Schoolhouse Gate is a breath of fresh air.

The breadth and ambition of The Schoolhouse Gate are its greatest strengths. But in an effort to construct a metanarrative, Driver treats all doctrines and issues as roughly equal in importance. (6) The various cases appear as data points in service of a larger story. Many scholars--including us--would argue that the Court's education cases are not equal. Some would insist free speech and religion cases have had the most significant effect on public education, while others would emphasize the influence of discipline, discrimination, and desegregation cases. …

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