Leong
Talking Out of Public School
Nancy Leong
Online Symposium: Justin Driver, The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind (2018).
100 B.U. L. Rev. Online 84 (2020)
Justin Driver’s engaging and provocative monograph explains that it “examines the intersection of two distinctively American institutions: the public school and the Supreme Court.” Driver’s work provides us with fertile ground on which to grapple with an uncomfortable truth: The members of the latter institution have virtually no experience with the former institution.
Of the current members of the Supreme Court, a majority—five out of nine—attended private high school. This represents a marked divergence from the general population, of which only about ten percent attended private school. Moreover, the last time any member of the Supreme Court was a student in a public school was in 1977—the year that Elena Kagan graduated from Hunter College High School. It’s worth mentioning that Kagan’s high school is nominally a public school, but one so elite that the Washington Post has named it the best public high school in the country. Although it is beyond the scope of this short review, we might draw a colorable distinction between public schools that are truly open to the public and those that are nominally public but highly exclusive. Before Kagan, the last time a member of the Supreme Court was a student in a public-school classroom was 1968—the year Justice Samuel Alito graduated from Steinert High School in Hamilton Township, New Jersey.
What this means is that no member of the Supreme Court was a student in a public school during or since a wide swath of the cases that Professor Driver ably explores. No Justice has been a student in a public school since Hazelwood School District v. Kuhlmeier upheld a public school principal’s decision to prevent the school paper from running stories about divorce and teen pregnancy. No Justice has been a student in a public school since Stone v. Graham invalidated a Kentucky statute requiring the display of the Ten Commandments in every classroom—the necessity of such a ruling highlighting how long ago it was. Indeed, no Justice has been a student in a public school since Justice Powell’s fateful concurrence in Regents of the University of California v. Bakke established diversity as a compelling state interest in public education, changing the way we think and talk about racial and other kinds of diversity both in society in general and, to an even greater extent, in educational environments. The public schools the Justices attended were very different places than they are today, and the result is that none of the Justices can claim recent firsthand exposure to the public school system of today.
This is not, of course, to say that all public schools are qualitatively different from all private schools in consistent and essential ways. Still, in the aggregate, the lopsided educational experiences of the Justices cannot help but influence the preconceptions each one brings to the bench. And these skewed understandings of the educational environment are surely exacerbated by the Justices’ post-K-12 experiences: not a single Justice attended a public college or law school, or even a private school that was not extremely elite.
To illustrate the Justices’ disconnect from public schools as an institution, one might pick any of the hundreds of cases that Professor Driver examines in his broad and insightful discussion, but I’ll focus on just one: J.D.B. v. North Carolina, a case Professor Driver describes as “one of the most unusual Supreme Court decisions, taken from any field, within recent memory.”
While J.D.B. is indeed unusual, it is quite typical as an exemplar of the Justices’ disconnect from the public school environment. Justice Sotomayor’s opinion for a five-justice majority is often hailed as a progressive victory. Her majority opinion held that a juvenile suspect’s age may be a factor in determining whether the suspect is in custody for purposes of Miranda v. Arizona. The question is important because it affects whether the suspect is constitutionally entitled to a Miranda warning.
Yet as Professor Driver astutely observes, the majority opinion fails to acknowledge the uniqueness of the school environment in affecting a student’s sense of custody. He writes: “Sotomayor’s elevation of age over the school setting seems more redolent of an insufficiently fact-sensitive approach to law, one that would yield artificial applications in at least some real-world settings.” Driver suggests—perhaps optimistically—that public school alumnus Justice Alito recognized the importance of the school environment, but that he “appeared content to score points on the abstract question of age’s import for custody, and seemed uninterested in identifying a sensible solution to an important legal problem.”
A Supreme Court more immersed in the public school environment might have discussed other considerations. Truancy laws, for example, often exempt nonpublic schools. Thus, while there may be penalties for skipping private school, those penalties do not include government-imposed legal penalties. This, in turn, might well influence how a public school student sees a police officer differently than their private school counterpart. Likewise, in public schools, not only police officers but also school officials are state actors and are similarly bound by the Fifth Amendment. Public schools are also significantly more racially diverse than private schools: at private schools 68.6% of students are white, while in public schools only 48.7% of students are white. These dynamics, research suggests, affect relationships between students and school authority figures, such as teachers and administrators. This is not to say that the members of the Supreme Court are intellectually unaware of these considerations. But it is one thing to know and another thing to understand, viscerally, from firsthand or close secondhand experience, what the school environment might mean for the students within a school’s walls. Perhaps a Supreme Court whose members understood more fully the nuances of the public school environment would have articulated a rule that—as Professor Driver proposes—took account of the school environment rather than elevating age to a special status.
What is the cure for this increasing divide between public schoolhouse and Supreme Court? Put simply, the Justices need to learn about public schools. Although it almost seems a pipe dream to imagine that a nominee to the Supreme Court might proactively seek out exposure to the conditions of our public schools and the children within them, perhaps this is exactly what must happen in order to remedy the problems Driver identifies. The Justices would do well to emulate Professor Driver’s own self-awareness of the way his time attending Catholic high school and teaching public school influenced him.