Law and Order

04/04/2019

When I was in junior high school, there was one teacher who had a unique method for establishing order in his classroom. I swear I’m not making this up.

On the first day of school in September, he would pick out one male student who he perceived to be a potential troublemaker, and he would wait for that kid to make a false move. Once he got that pretext, he would escort the offender out into the hall.

The hallway was lined with lockers, and the teacher would back the student up against a locker. He would then cup his hand under the student’s chin, and bang the kid’s head on the locker a few times, which made an enormous racket.

The noise was the point, of course. It was sort of like the stocks or the dunking stool of our Puritan past, in which the public humiliation of the accused is meant to intimidate the crowd as much as anything else.

It worked. As the rest of us sat there openmouthed, it was pretty clear that nobody else wanted to be subjected to that sort of spectacle. He never did it again, for that semester.

The technique caused more shock than pain, and as far as I know never resulted in a concussion, but still. Can you imagine what the reaction to this sort of violence would be today? I’m pretty sure the teacher would be led out of school in handcuffs by close of day, and the whole incident would have gone viral.

A more important question would be this. What changed? I thought I knew the answer, and perhaps you think you know it as well, but in my case it turns out I was wrong.

I assumed that the change could be traced back to the Supreme Court of the United States, and specifically to the liberal court of the 1960s under Earl Warren. I remember having the impression at the time that the court had established that students had “rights,” such as the right not to have one’s head bashed into a steel locker.

Last August, an article appeared in The New York Times entitled “Do Public School Students Have Constitutional Rights?” written by a law professor named Justin Driver. According to the article, there was indeed a movement by the high court to recognize student rights, which can be traced back to a 1943 decision regarding the American flag. Even in the middle of the Second World War, the court ruled that students could not be compelled to salute the flag any more than an adult could.

In 1969, the court made the decision that gave many of us the notion we have about student rights. In Tinker v. Des Moines Independent Community School District, the court ruled that a school could not prevent a student from wearing a black armband as an antiwar protest, unless it could prove that doing so interfered with the maintenance of school discipline or the rights of others. In other words, students have first amendment rights.

Driver’s point, however, is that more conservative courts of the 1970s and ’80s reversed much of that movement. In 1977, for example, the court ruled that corporal punishment in schools did not violate the Constitutional ban against cruel and unusual punishment and was therefore permissible.

Since that time, the great majority of states, including my home state of New York, has enacted regulations that prohibit corporal punishment in public schools. So a major change in education that I had always attributed to the Supreme Court was in fact not its doing.

Professor Driver also refers to the 1985 court decision in New Jersey v. T.L.O. The case was about a 14-year-old female student who was caught smoking in the restroom. The school searched the girl’s purse and found marijuana, along with a letter which implied that she was selling it to other students.

Her lawyer argued that the school had violated the Constitutional ban against unreasonable search and seizure, but the court held that the search was appropriate. That ruling has given schools broad authority to conduct searches, and has severely limited privacy rights for students.

All of this made me question whether I really know anything at all about the Supreme Court’s effect on our educational system. Perhaps it would be worthwhile to find out.

Fortunately, there is a museum in Philadelphia called The National Constitution Center, and it publishes an online newsletter, the Constitution Daily, which answers just such questions. On its website I found an article entitled, “10 Important Supreme Court Cases About Education.” It included the two mentioned above, plus eight others.

In chronological order, they begin with the only one I could have named myself. In the landmark 1954 ruling in Brown v. Board of Education, the court established that “Separate educational facilities are inherently unequal,” and ordered the end of racially segregated schools. The court did not tell us how to go about desegregating schools amid a largely segregated population, and 65 years later that problem remains unsolved.

The next two decisions are lumped together, because they were made in consecutive years and established essentially the same thing. In Engle v. Vitale (1962) and Abbington School District v. Schempp (1963), the Warren Court said that public schools could not conduct prayer services, even if they were nondenominational and even if students could opt out. Teachers are considered to be agents of the federal government, and thus cannot endorse a particular type of prayer.

In 1971, the court considered a different side of the Establishment Clause in Lemon v. Kurtzman, which challenged the ability of a state or local government to provide funding for teacher salaries and educational materials in parochial schools. The court ruled that such funding represented too much entanglement between government and religion, and I don’t think it’s entirely coincidental that there are now fewer than half as many parochial schools as there were in the 1960s. The Catholic high school in my town closed several years ago.

The following year, in Wisconsin v. Yoder, the court handled still another sticky question regarding religion. Wisconsin mandated that all children must attend school until age 16, but an Amish man argued that education past eighth grade was unnecessary to the Amish lifestyle and would tend to corrupt their faith. The court agreed. I’m not really sure what to say about this one.

During the same term, the court made a ruling that I found to be the most interesting of all. In San Antonio Independent School District v. Rodriguez, the school district claimed that its students were denied equal protection under law because the district’s low property taxes resulted in less money for education. The court disagreed, stating that the Constitution does not specifically guarantee the right to an education. So all those rights we think students have? Apparently not that one.

Here’s another one that got by me. In 1990, Congress passed into law the “Gun-Free School Zones Act,” which prohibited firearms in schools. The law was challenged by a student in Texas who felt that he had a Constitutional right to carry a gun, leading to a 1995 Supreme Court decision in United States v. Lopez. The court ruled that Congress had indeed exceeded its authority, because school regulations were the business of state governments.

The most recent educational landmark was the 2007 case with the awkward title of Parents Involved in Community Schools v. Seattle. The former challenged the latter over the city school district’s practice of using race as one of the factors in deciding which students were granted admission to the most competitive public schools. According to the Constitution Center, the court “determined that its earlier decisions for college affirmative action do not apply to public schools and that racial diversity is not a compelling government interest for public school admission. Furthermore, they held that denial of admission to a public school because of a student’s race in the interest of achieving racial diversity is unconstitutional.”

Okay, so now I know a little more about who has what rights, and how they got them. Does that really make any difference in how I run my business from one day to the next?

Perhaps not, but I think that a sense of history and context does matter. The next time I get into a discussion about what’s wrong with education, I may not sound like someone who has had his had bashed against a locker.


You can e-mail Kevin at kfahy@fwpi.com.

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