The Battle for the Constitution

HEFFNER: I’m Alexander Heffner, your host on The Open Mind. My guest today recently delivered a lecture at the Supreme Court about the contemporary revival of the Southern Manifesto in opposition to the holding in Brown v. Board of Education. Justin Driver is professor of law at Yale Law School. He teaches and writes in the area of constitutional law and is the author of “The Schoolhouse Gate: Public Education, the Supreme Court and the Battle for the American Mind.” The book was selected as a Washington Post notable book of the year and Editor’s Choice of the New York Times Book Review and receive praise from the American Bar Association. Thank you so much for being here, Professor, Justin.

DRIVER: I’m glad to be here.

HEFFNER: We’ve been trying to make this happen for a while. We finally are here amidst constitutional, tumultuous constitutional waters. And I wanted to start there, not with impeachment, but with these unfortunate and mysterious comments by Trump would-be appointees and now appointed judges.

Democratic senators have been asking potential jurists do you agree with the holding in Brown v. Board? And they’re silent. They’re not answering whether they agree with the fundamental equality derived from that decision. Is there something more there that we should be concerned with, than just their refusal to accept precedent, the fact that they are unwilling to affirm assertively the holding in Brown?

DRIVER: I find the refusal to acknowledge the legitimacy of Brown quite confounding. And one of the reasons that I find it confounding is that it is an incredibly protean decision. It means many different things to many different people. And so to say that you think that Brown was correctly decided, it doesn’t really pin one down in a major way. I think of Brown vs Board of Education as sacrosanct. Many people have said that in order to have a legitimate theory of constitutional interpretation, Brown has to be able to account for it.

So I’m confused by the refusal of these recent nominees to refuse to honor Brown.

HEFFNER: What we’re supposed to understand is that they refuse to comment on this because they’re refusing to comment on Roe and that by not commenting on Roe, they have to be consistent in their refusal to honor precedent. But we had all these nominations in recent years from the Bush years and Obama years where the nominees really did say that they were going to abide by stare decisis, by precedent, and that seems to be going out the window now. And there’s no demand on the part of the Republican senators who were voting, rubber-stamping these judges in that they are going to abide by any idea of stare decisis.

DRIVER: Yeah, I think that’s right. And I, for one, do not find the analogy to Roe v. Wade especially powerful in the sense that lots of people have been able to draw lines saying Brown versus Board of Education is one thing and I’m not going to comment on these other cases. It’s striking about Brown, how quickly it became widely celebrated. And I believe that Potter Stewart’s confirmation hearings were in, you know you know, a very shortly after Brown vs Board of Education. And he believed that that decision was correctly decided and said, so during his confirmation hearings. And so the refusal is you know, a really notable development and it’s, it’s new.

HEFFNER: Do you think that the so-called strict constructionists, the textualists who want to understand America in the 18th century; they are intent on eroding Brown right now? That’s it’s a deliberate, explicit mission?

DRIVER: Well unfortunately, from my vantage point, Brown has already been eroded so it’s a little hard to know how it could be hollowed out further.

HEFFNER: Expand on that.

DRIVER: So I guess I would say I was a law clerk at the Supreme Court of the United States in 2007 when the Supreme Court issued a decision called Parents Involved in Community Schools.

That case grew out of Louisville and Seattle, places that had voluntarily adopted racial integration programs. They said, look, if we assign students simply to the closest school we’re not going to have racial integration as a result of the persistence of racial segregation and housing. And so in order to have schools that reflect the rich racial diversity of our communities, we’re going to take account of race. And the Supreme Court of the United States invalidated these measures and said that in effect; they run a foul of Brown vs. Board of Education. Chief Justice Roberts wrote an opinion where he says; the way to stop on the basis of race is to stop discriminating on the basis of race. And he says that these programs are just like Brown in the sense that in the era of Brown, school districts told students where they could go to school based on the color of their skin.

And these programs tell students where they can go to school based on the color of their skin. It mattered not one wit for constitutional purposes that in the bad old days students were sent to separate schools and that was sort of predicated on racial inferiority, perceived racial inferiority of people of color. And in the modern era, they were taking account of race to bring people together. So I find that Brown has been hollowed out. Indeed it’s a long sort of period of erosion that has happened to that decision and there’s precious little of it left in my view.

HEFFNER: What’s next, given that we have a majority, still dominated by Roberts. I guess my question is how does that erosion persist even more than what it is today?

DRIVER: So well there’s a, there are a couple of things. One could imagine a were over, they say that Brown versus board of education was incorrectly decided in the first instance.

And that States want who want to have racial segregation should be able to have that. That’s not going to happen even with the current court. The more likely scenario is that the rise of colorblind constitutionalism will creep from the elementary and secondary schools to higher education as well. This is a way of saying that affirmative actions days are likely numbered. Justice O’Connor wrote an opinion for the court upholding legitimacy of affirmative action in 2003. And she said there, that in another 25 years, it’s likely that affirmative action will no longer be necessary. Here we are nine years away from that time. And at the time many people, when she wrote this in 2003, many people said that’s not going to be long enough. Proponents of affirmative action these days would sort of leap at an opportunity to have another nine years of affirmative action. Its days really are numbered.

HEFFNER: Right. When we had President Crutcher here of the University of Richmond, we talked about Gratz and Grutter and Bollinger and the reality of that being an aspiration that was not achieved and that cannot be achieved under current policies, when you have this lore of Brown and then the enactment of policies that just did not follow suit. But studying this jurisprudence historically, what did you find to be, you know, in the passage of legislation to try to enact the goals of Brown, to be most effective, or what still can be most effective and ultimately in this climate pass the jurisprudence test?

DRIVER: Wonderful question. I’m glad you asked. There is room available for school districts who are interested in pursuing racial integration to do so. Justice Kennedy wrote a controlling opinion in the parents involved case where he says that colorblindness is not required on behalf of school districts.

School districts can be race-conscious in the way that they draw the district boundaries of a particular schools. They can be aware of the broad racial demographics even if they cannot, you know, sort of racially identify individual students. You could also imagine a world and some school districts have done this of taking account of socioeconomic status, which is not perhaps as effective at just thinking about race but would also allow school districts to be able to bring about racial integration. So the sad truth is that the programs that were at issue in Louisville and Seattle were very unusual. That is to say there was precious little appetite for racial integration in our body politic before the parents involved in community school district decision. And there’s precious little appetite after that decision. It would be erroneous to believe that the parents involved decision takes all sort of opportunities off of the table.

HEFFNER: How potent do you think and what is the lifespan of the potence of the reverse racism argument, which really is what Roberts is up to in that case. And subsequently now with the pending Harvard litigation, the attempt to abolish outright affirmative action. I mean it is premised on this idea that you are respecting the precedent of Brown because you are not discriminating against white people. You know, and that’s,

DRIVER: Yeah, that’s, that’s right. I was sort of disheartened to realize the resonance of the Robert’s opinion with the Southern Manifesto, which you mentioned in your introduction. This is a document from 1956 where the Southern senators and congressmen get together to say that they think that Brown was incorrectly decided. Contemporaneous with that in 1956, Senator Sam Ervin, a graduate of Harvard Law School, is from North Carolina who was a justice on the North Carolina Supreme Court. He issued a remarkable statement.

He said, Brown is a deplorable decision, but it’s also not as drastic as people think. This is a key moment because he is attempting to tame the meaning of Brown when he says not as drastic as people think, he was sort of tipping his hat and saying Brown does not require integration. It merely forbids segregation. And then over time he would move away from this first part of his argument to saying that Brown was deplorable and said Brown was rightly decided and properly conceived it should prohibit judges from taking account of race to bring about racial integration. And so Roberts has this, Chief Justice Roberts has this argument where he says, history will be heard. And he says that I’m vindicating the real meaning of Brown. He lays claim to that mantle. But my view history was heard in that opinion. It wasn’t the proponents of Brown but its opponents that Roberts’s opinion and parents involved was actually channeling.

HEFFNER: Right. And the same idea is pertinent in voting rights. And when Roberts rules in favor of removing people from the voting rolls in Ohio, it is the same idea. And you know, to my mind and Akhil Amar and I debated on this, on this subject, this idea of these two lanes of strict constructionist, textualist and living constitutionalist that’s malarkey to quote Joe Biden, right? I mean that has always been malarkey. We were talking off-camera about a constitutional consensus, well I don’t know about that anymore in this political climate, but can you maybe give voice in your mind to this idea of the constitution being respected, as it exists today, not being a modern living constitutionalist theory. To my mind, you are a textualist by reading this document now and understanding the text now, which has updates from the centuries and decades before us that our forbearers contributed to it.

That is the text; that is being a strict constructionist. And I know that, that Justice Kagan in particular has attempted to redefine this interpretation for the liberal side of the court. But why has there not been more of a multifaceted effort on the part of the minority and more broadly in the political sphere to assert that we are the party that is respecting the constitution. And that makes us the textualist and, and not a living constitutionalist.

DRIVER: So, really important point that you are making in this question. I would say that, you know, justice Breyer has written a book called “Active Liberty,” where he tries to articulate his vision of constitutional law and he doesn’t exactly say I’m going after Justice Scalia here in trying to take down originalism. But when one reads his account, which does place an important emphasis on stare decisis it’s difficult not to think of that as very much being intention with this.

Of course, you know, originalism is a really protean concept. It means very different things according to different audiences. Some of the people in the Academy, when they talk about originalism, they would say, of course there’s a place for stare decisis. Indeed, even Justice Scalia said that sometimes stare decisis should carry the day. But of course, that is an interesting point because one of the virtues, supposed virtues of originalism is that it gets rid of discretion. But if you’re deciding when to abide by stare decisis and when to get rid of stare decisis of course there’s an enormous amount of discretion there as well.

HEFFNER: There may be an opportunity based on your book for consensus to emerge on questions in the school on free expression, corporal punishment, more so than the question of affirmative action where we anticipate a hotly contested court. Is that the way you see it potentially?

DRIVER: Yeah. One of the core arguments in the book is that it’s possible to assemble a coalition of liberals and the libertarian inflected vision of constitutional law that is ascendant in some right circles in order to bring about some needed adjustments to the doctrine. With respect to the freedom of speech, if you’re a libertarian, you have a certain amount of skepticism of state authority to be able to determine what can and cannot be said on school premises. The Tinker decision from the 1960s did a really important job of recognizing student speech. Unfortunately, in recent years, the Supreme Court has fallen down on its responsibility to protect students’ rights. There was a case that was decided again when I was a law clerk called the Morse versus Frederick decision, although nobody calls it Morse versus Frederick, just about everybody calls it Bong Hits for Jesus.

And this is a case where a student brought a banner across the street from school that was emblazoned with that message: Bong hits for Jesus, and the principal ripped the banner out of his hand and suspended him for 10 days. And the question was, you know, does this violate the freedom of speech? And Chief Justice Roberts wrote a really unusual opinion for the court where he said, if the principal reasonably believes that the speech in question is designed to promote illicit drug use, then it’s permissible to punish the student for the speech. And that’s unusual because there’s an idea on the First Amendment that you’re supposed to be viewpoint neutral. You can’t silence one side of the debate. You know, you need to be even handed and the marketplace of ideas will work. So unfortunately, you know, the court said that it did not violate the free speech in question here.

And Roberts has said that he is the biggest friend of the freedom of speech on the court, but unfortunately he’s not been a friend of student speech. And so I’m hopeful that he will revisit this area.

HEFFNER: What is permissible today on a campus because that finding is so in contrast to the historical precedent and holding in the Tinker case, and so if you wanted to know as a student today what would be permissible you really wouldn’t have a clue because you have these two isolated cases but not really a consistent case law here.

DRIVER: Right? Yeah. Tinker was the high water mark in this area and it has been eroded in recent years. From my own perspective, you know, Tinker was a really important step forward in the sense that Fortas writes an opinion where he says it can hardly be argued that students shed their constitutional rights at the schoolhouse gate.

This is a momentous opinion, gives me the title for my book. But it didn’t go far enough in my view. The test that came from Tinker was if there is a reasonable forecast of a substantial disruption of school activities, then it’s permissible to punish the student for the speech. And that didn’t go far enough because it reads in what sometimes is referred to as a heckler’s veto where particularly sensitive listeners can if they object vociferously enough, shut down otherwise, you know, legitimate speech. And so this in effect incentivizes students who object to speech to say, hey, I’m going to beat you up or there’s going to be trouble and that sort of thing. And so there are recent cases in the lower courts where these hecklers vetoes are allowed to prevail and carry the day.

HEFFNER: What you could more objectively define as explicit, either hate speech or incitement of violence, and, and I mean that in the context of the, of the school just as much in the context of the public square would normally be the criteria where speech is disallowable.

DRIVER: That’s right. And I would go even further still in the sense that I think that one needs to be careful with the First Amendment doctrine and be sensitive to the particular setting of the school in the sense that we have compulsory attendance requirements. And so you really are dealing with a captive audience. I for one, would promote a beefed up fighting words doctrine in the school where, if a student is using, you know, racial epithets or these sorts of things, that that sort of speech does not, is not protected even though it would be protected in the public park across the street after school. And so I do want to be sensitive to the needs of the school.

Nevertheless, it seems to me that schools have been overly permissive in allowing students to shut down legitimate speech, including, there was a case out of California where students were wearing clothing featuring the American flag, and they were told that they had to turn it inside out. This was on May the fifth, aka Cinco de Mayo. And the students were saying, who objected, you don’t like Mexicans as a result of wearing this. And I understand the frustration that the students felt, but the answer to that is not to threaten violence upon people who are wearing clothing featuring the American flag.

HEFFNER: Justin, in the time we have remaining, how does this extend to corporal punishment and to discipline in the school? In other words, in a public school, what is acceptable today according to the current constitutional standard?

DRIVER: Yeah. The single most shocking case that I discovered in writing about this book is a case from the 1970s it’s called Ingram versus Wright where a student in Miami, Florida was beaten savagely, he received 20 licks with a two foot long wooden paddle and his infraction was being slow to get off of the stage at a school assembly.

He had bruises that were, he had one that was six inches in diameter, that was tender, purplish swollen and oozing fluid three days after this attack and the Supreme Court, the United States said that it did not violate the Eighth Amendment prohibition on cruel and unusual punishment. They said in order to qualify as cruel and unusual punishment, it has to stem from a criminal conviction. And so this has no application in the school whatsoever. What I find most distressing is that this is not merely a historical artifact. Instead, corporal punishment is alive and well in this great nation of ours. There are 18 states that continue to permit corporal punishment. And in some ways that overstates it because just five States account for more than 70 percent of the instances of corporal punishment. Those five States are all in the deep South and it will come as no surprise to you and viewers of this program that students of color receive a disproportionate share of corporal punishment.

So if I have any single hope for this book, it is that it will elevate the salience of this issue. I think a lot of people are unaware that corporal punishment persists and that it will invite the Supreme Court of the United States to revisit this topic.

HEFFNER: And you’re talking about public schools?

DRIVER: Yes, that’s right. I’m talking about public schools and there’s compulsory attendance laws. Some of these schools have no ability to opt out whatsoever. So if you’re a parent who objects to corporal punishment, there’s no way that you can say, my kid will not be hit. It’s a real, really archaic practice and we should say that it’s not happening in, you know, Atlanta in Georgia. Instead it’s happening in these more remote and isolated parts of the state and I fear that those jurisdictions are not going to abandon the practice of their own volition. And so it really will require a judicial decision to get rid of this.

HEFFNER: I know you clerked for Justice Breyer, but from your own experience, what do you expect of the Chief Justice and, and how he will preside over the impeachment trial?

DRIVER: If the House does actually impeach and the moves to a trial in the Senate, I would anticipate that Chief Justice Roberts would try to have a very small imprint. I think that his model on this front would be Chief Justice William Rehnquist, his old boss who during the Clinton impeachment trial had a very sort of small role. And I don’t think that people view Rehnquist as sort of looming large and I very much anticipate that if Chief Justice Roberts is thrust into that role, that he will follow suit.

HEFFNER: There is the argument that speaker Pelosi’s confrontation of impeachable offenses is in fact carrying forward originalism today, a progressive originalism, not a living constitutionalism, but a real originalism textualism, strict constructionism.

Isn’t it the case that speaker Pelosi is giving life to everything that those so called originalist want to talk about the text of the constitution, emoluments, the case against Donald Trump is in the constitution as it was conceived in the 18th century. Isn’t there the argument that she can that Speaker Pelosi can chart a path anew to make the liberals on the court the true originalists?

DRIVER: Oh, that’s a very interesting question. I was struck by the time of a major hearing yesterday and there were a number of law professors who were testifying about the constitutional standards. And there was a lot of talk about high crimes and misdemeanors, the text of the constitution itself. And I watched those hearings with admiration in the sense that it was a very high level discourse on what the constitution actually means.

A number of the members of the House of Representatives were very interested in asking about what the framers of the constitution meant and what they understood. And in some times the law professors who were testifying would engage them on sort of what the framers meant. And other times they would say, well, we ought to be careful about being too loose with the way that we suggest what people, you know, more than a couple of hundred years ago would have thought about these sorts of questions. So these issues are going to remain prominent with us. I’m confident for the, at least the next few months.

HEFFNER: Had George Washington, Alexander Hamilton, James Madison, or any of the framers heard an American presidential candidate say to an opposing country, an adversarial country, if you’re listening hack into one of our own American institutions? I mean Trump’s words during the ’16 campaign were unconstitutional, I mean, which is in effect, he wasn’t president yet, so he couldn’t be tried for it. But in effect, the Ukrainian affair is an extension of that. And that goes to the heart of Washington’s concerns in particular about the independence of this new nation.

DRIVER: Yeah, I find it very distressed, obviously all sorts of things about the Trump presidency, not least the way in which he has held himself out above the impeachment process itself and tried to subvert the process. And I thought that one of the more powerful points that was made in the recent hearing was that that’s not part of the American tradition. Indeed one of the things that motivated the United States to become the United States and to move away from England was that we don’t have a King and that to bow down and to allow this sort of you know, a person who holds himself out to be above the law is deeply un-American to use a tough term.

HEFFNER: Justin, thank you so much for your time today.

DRIVER Oh, I really enjoyed it. Thanks for having me.

HEFFNER: You’re welcome. And thanks to you in the audience. I hope you join us again next time for a thoughtful excursion into the world of ideas. Until then, keep an open mind. Please visit The Open Mind website at Thirteen.org/OpenMind to view this program online or to access over 1,500 other interviews and do check us out on Twitter and Facebook @OpenMindTV for updates on future programming.