This speech, delivered as the Lane Lecture in Lincoln, Nebraska, on Friday, November 8, 2019, is drawn from the book The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind, which Pantheon Books published in 2018. This book examines the intersection of two distinctively American institutions: the public school and the Supreme Court. The United States has long exhibited an uncommonly strong belief in the importance of public education and its centrality to national identity. As Adlai Stevenson once remarked, “The free common school system is the most American thing about America.” But many other observers have suggested that the nation’s faith in public education may be rivaled only by the faith it places in the judiciary to resolve critical disputes. In the 1830s, Alexis de Tocqueville’s Democracy in America offered what remains the most famous formulation of this idea. “There is hardly a political question in the United States which does not sooner or later turn into a judicial one,” Tocqueville contended. Since this statement appeared, the federal judiciary—with the Supreme Court at its apex—has assumed only a more expansive role in American society.
Although education and constitutional law were once viewed as fundamentally distinct entities, a panoramic view of this area now establishes that, without exploring the extensive interaction of the public school and the Supreme Court, it is impossible to grasp the full meaning of either quintessentially American institution. One cannot plausibly claim to understand public education in the United States today, that is, without appreciating how the Supreme Court’s decisions involving students’ constitutional rights shape the everyday realities of schools across the country. Conversely, one cannot plausibly hope to comprehend the role of the Supreme Court in American society without appreciating how its opinions involving public education reveal the judiciary’s underappreciated capacity for both spurring and forestalling major social change.
At its core, this book argues that the public school has served as the single most significant site of constitutional interpretation within the nation’s history. No other arena of constitutional decision making—not churches, not hotels, not hospitals, not restaurants, not police stations, not military bases, not automobiles, not even homes—comes close to matching the cultural import of the Supreme Court’s jurisprudence governing public schools.
The Public School as the Preeminent Site of Constitutional Law,
98 Neb. L. Rev. 777
Available at: https://digitalcommons.unl.edu/nlr/vol98/iss4/2