Chapter 2

[OCLRE]

In the thread below, we encourage you to join us in our discussion on Chapter 2 of The Schoolhouse Gate!

[Danielle]

In chapter 2, Professor Driver reminds us again of the importance of providing context when teaching court cases. In his examination of various cases surrounding students’ right to free speech, Professor Driver suggests that the cases may have been decided differently had the students provided alternate reasoning for their actions. For example, in Morse v. Frederick, had the student holding the banner claimed his words were intended to express a political opinion, the outcome may have been different as political opinions are more readily protected under the First Amendment. This reminds us that court decisions have significance not only in their outcome but also in the theory that lead to the outcome. It can be valuable to challenge students’ understanding of landmark decisions by asking them to imagine scenarios in which the outcome may have been different. This not only furthers their understanding of the case, but also contextualizes the issue at the heart of the debate.

[Ryan]

Danielle wrote: "In chapter 2, Professor Driver reminds us again of the importance of providing context when teaching court cases. In his examination of various cases surrounding students’ right to free speech, Pro..."

I think this is a really important point, the power of context in influencing the justices is a critical part of understanding their jurisprudence. It also highlights how helpful it is to have students learn about the facts and people involved in a case a a tool for also understanding the decisions. This extends also to the culture at large that is at play in decisions (e.g. what was the impact of anti-Vietnam War sentiment in the Tinker decision?).

However, I think it is also important to recognize that often people who are the "subject" of a court case (I am very intentional in choosing this word here) sometimes have almost no voice at all to offer up the context. This is particularly true when we consider appellate courts, since they are limited by the record that has been produced by the inferior courts. If context is ignored during the trial court, then it will almost certainly be ignored in appellate courts.

Unfortunately, I think the context is more likely to be ignored when the deprived party is part of a marginalized group (e.g. students, racial and ethnic minorities, people in poverty, etc.) or when the subject is unfamiliar to the lived experience of the jurists.

The outcome of Bell v. Itawamba County School Board ignored the student's voice and the context of the alleged threats as part of the bravado that is an accepted and expected part of hip-hop culture. When the Fifth Circuit heard the case en banc I can't help but wonder how many of the jurists were at all familiar with the cultural influences at play in Taylor Bell's music and the situation at the school. As Professor Driver points out in later chapters, the justices sometimes tip their hands during oral arguments by reflecting on their own school experiences and it becomes clear that their recollections of the "good old days" is completely alien to the realities that most students face today.

While tangential, I am also reminded of how this problem of context and subjugation of voice shaped the outcome in Buck v. Bell; a 1927 case that is still binding precedent in which an 18-year-old rape victim who was a ward of the state was declared "feeble minded." The Supreme Court ruled in Buck that the Constitution was not an impediment to her forced sterilization, because "three generations of imbeciles are enough." Justice Holmes equated the public interest in forced sterilization as the equivalent of compulsory vaccinations, since it was all for the benefit of society.

Although Carrie Buck was the plaintiff, the case was not brought on her behalf, but rather was brought by her jailers at the Lynchburg Colony as a way to test a new law passed by the Virginia Legislature. At no point during the proceedings was she permitted to speak, or to correct the many errors that had been made about her family, her own educational history, how she ended up pregnant, or the estimations that doctors had made about her own 7-month-old child!

There is a saying in law schools and legislatures that "bad facts make bad law." This saying, however, does not account for when jurists ignore facts... doing this makes law that is equally bad but exponentially more insidious!