OCLRE Civics Book Club discussion

The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind
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The Schoolhouse Gate > Chapter 1

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OCLRE | 5 comments Mod
In the thread below, we encourage you to join us in our discussion on Chapter 1 of The Schoolhouse Gate!

Ryan Suskey (r_suskey) | 6 comments I was struck in this chapter by two things that seem interesting to dissect:

1) The counter-majoritarian resistance of assimilation
2) The conflict between the Justices personal views and judicial views.

Resisting Assimilationism
Looking at the Courts' early forays into student rights as resisting the majoritarian/assimilationist push that characterizes a lot of thinking about the United States (even when they were viewing this through the idea that student rights are actually parental rights by proxy).

This feels like a good example of the way in which the Court is often a place where individuality can be protected from the tyranny of the majority. In many ways this feels like a very modern viewpoint of the Court as a vindicator of individual rights, which it has not always been understood to be. Although the extent to which the Court actually vindicates individual liberties may wax and wane, the popular perception of the judiciary has become one in which individual citizens can find relief.

The concept of the US as a "melting pot" was widespread throughout the 19th and 20th centuries (despite the fact that it is inimical to multiculturalism) and yet the Court declined to find that assimilation/acculturation are important enough to outweigh an individual liberty interest retained by the parents in these cases.

This isn't to say that they were not sympathetic to or disfavoring of acculturation. Looking at the majority opinions in Pierce v. Society of Sisters and Meyer v. Nebraska make it clear that the Court does believe in the importance of a common national identity and viewpoint:
The desire of the legislature to foster a homogeneous people with American ideals prepared readily to understand current discussions of civic matters is easy to appreciate. Unfortunate experiences during the late war and aversion toward every characteristic of truculent adversaries were certainly enough to quicken that aspiration. But the means adopted, we think, exceed the limitations upon the power of the State and conflict with rights assured to plaintiff in error. Meyer v. Nebraska, 262 U.S. 390 at 402

The fact that the Court sided with the individual families in Meyer and Pierce is even more striking in light of the fact that the First Amendment Freedom of Speech guarantees weren't even incorporated against the states until 1925, and the implicit Freedom of Expressive Association wasn't incorporated until 1984. The route they took instead, the Fourteenth Amendment, is one that the Court often relies on today for vindicating the rights of disfavored groups.

Conflict With Justice's Repugnant Personal Views
In this way, Justice McReynolds (majority writer in both cases) was "ahead of his time," but that is difficult to contrast with what we know of McReynold's reprehensible views (antisemitism, misogyny, racism, and xenophobia). One would expect that, given his views, he would be less sympathetic to the concerns of the Japanese language schools in Tokushige but he nevertheless held that the Constitution protects their rights just as much as it protected the white parents in Meyer.

Although McReynolds gets special attention in Professor Driver's book, he was not the only member of the Taft Court to hold such views. President Taft, Chief Justice at that time, actively worked to reduce the number of black officeholders during his presidency. Justice Holmes was a staunch supporter of the eugenics movement. Justice Sutherland authored opinions that would prevent immigrants of asian descent from becoming citizens or owning property (Ozawa v. United States and Yamashita v. Hinkle. Every one of the justices would also unanimously join Taft's opinion in Lum v. Rice not only upholding segregated schooling, but ruling that no equal protection violation occurs when a student of Chinese ancestry is forced to attend a school for students of color in a neighboring county rather than in her home county which was for white children!

Professor Driver's statement that:
American history is littered with figures who, though in many ways admirable, also articulated some odious views; it seems only fitting that there should be at least a few figures who, while generally odious, were capable of admirable utterances. (Page 61)

This feels especially salient given the difficulties that often face educators in wanting to uplift a viewpoint without uplifting an individual. It is not necessary to turn Justice McReynolds, or any Supreme Court Justice, into a hero when all one wants to do is celebrate their actions upholding individual rights.

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Danielle Wilmot | 2 comments I appreciate the way the author has approached case law in this book because it illuminates important reminders for anyone examining or teaching court cases. One thing in this chapter that struck me the most was Professor Driver’s reconciliation of Justice Harlan’s opinion in Cumming and his dissent in Plessy. Understanding how Justice Harlan held such seemingly contradictory views seems challenging until you put his words from Plessy into contact. This serves as a critical reminder that excerpting opinions, both majority and dissenting, can have unintended consequences. Professor Driver’s assertion that Justice Harlan’s dissent in Plessy v. Ferguson has been misinterpreted over time and generally misunderstood is a prime example of how dangerous it can be to excerpt pieces of writing and speech if done haphazardly. Historically we have lauded Justice Harlan as an advocate of racial equality, a perception which has largely been based on excerpts of his dissent in Plessy. However, as Professor Driver points out, a more thorough reading of his dissent and adding context of the time period shows Justice Harlan in a different light. This is but one example demonstrating the importance of preserving meaning and context when we excerpt, shorten, or summarize text for students.

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