Acknowledgments

Given this book’s long period of gestation, I have incurred an unusually large number of debts that I now have the pleasure of recognizing. At the beginning of my legal career, I had the great good fortune to work as a law clerk for three eminent jurists: Judge Merrick B. Garland, Justice Stephen Breyer, and Justice Sandra Day O’Connor. Each of them emphasized that judicial opinions involving constitutional law, though sometimes intensely theoretical, are anything but abstract, as they affect millions of Americans in their everyday lives. This common, vital lesson runs throughout this book. Most immediate to the book’s subject, I worked with Justice Breyer during the 2006 term, when the Supreme Court issued some of its most high-profile decisions involving students’ constitutional rights in recent decades—including Morse v. Frederick (also known as “BONG HiTS 4 JESUS”) and Parents Involved in Community Schools v. Seattle School District No. 1 (which wrestled with the legacy of Brown v. Board of Education). Justice Breyer invested enormous amounts of time and energy in both disputes, and in so doing demonstrated the importance of education law to our constitutional order.

I completed this book with the unstinting support of the University of Chicago Law School, my incomparable intellectual home. That support began with its leadership. When I expressed interest in teaching a new course titled “The Constitution Goes to School” to the former dean Michael Schill, he eagerly welcomed my proposal. His successor, Dean Thomas Miles, has also embraced this project, celebrating analytical breakthroughs along the way and ensuring that I had the time necessary to commit those breakthroughs to paper. Various colleagues have offered incisive criticisms of the manuscript, exhibiting the engagement with ideas that makes the University of Chicago a model academic community. I am particularly grateful for the feedback of Daniel Abebe, William Baude, Emily Buss, Daniel Hemel, Aziz Huq, Dennis Hutchinson, Alison LaCroix, Genevieve Lakier, Jonathan Masur, Richard McAdams, Martha Nussbaum, Corbin Page, John Rappaport, Gerald Rosenberg, Geoffrey Stone, Lior Strahilevitz, David Strauss, and Laura Weinrib. I also appreciate the students who have enrolled in “The Constitution Goes to School” over the years for grappling with the course materials and my ideas. An intrepid platoon of research assistants took time away from their own work as law students to help me with this work: Jennifer Beard, Claire Bonelli, Devin Carpenter, Madison Clark, Sarah David, Adam Davidson, Alison Frost, Samuel Fuller, Madeline Hall, Alyssa Howard, Saif Kazim, Christopher Keen, Kevin Kennedy, Jacob Rierson, Jeremy Rozansky, Kathryn Running, Lindsay Stone, Adam Weiner, and Joseph Wenner. Several of these research assistants taught in public schools prior to beginning law school, and I deeply benefited from hearing at an early stage their reactions to my proposals for reform. All of these research assistants improved the final version, not least by tracking down sources that allowed me to depict both the events underlying students’ major constitutional claims and the contemporaneous responses to judicial opinions. Staff members of the law school’s library also provided crucial assistance with this endeavor, including Constance Fleischer, Sheri Lewis, Greg Nimmo, and Margaret Schilt. I received support from the Herbert and Marjorie Fried Faculty Research Fund and the Roger Levin Faculty Fund.

Several professors at other institutions also provided illuminating feedback, notably Bruce Ackerman, Akhil Reed Amar, Kate Andrias, Jack Balkin, Richard Banks, Stephen Carter, Owen Fiss, James Forman Jr., Barry Friedman, Heather Gerken, Jacob Gersen, Julius Getman, Pratheepan Gulasekaram, Laura Kalman, Randall Kennedy, Randy Kozel, Douglas Laycock, Sanford Levinson, Lisa Marshall Manheim, John Manning, Tracey Meares, Ajay Mehrotra, Martha Minow, Nicholas Parrillo, Lucas Powe Jr., David Pozen, David Rabban, Christopher Schmidt, Louis Michael Seidman, Scott Shapiro, and Matthew Shaw. I look forward to the day when I can at least attempt to repay these generous interlocutors. James T. Patterson deserves a special salute not only for his insights into this project, but for hiring me as a research assistant when I was an undergraduate. That intellectual experience influenced every page of this book.

Several dear friends provided essential encouragement and guidance: William Edwards, Abelardo Fernández, Danielle Gray, Christopher Hsu, Jonathan Kravis, Brian Nelson, Daniel Oppenheimer, Adam Orlov, Nicola Orlov, James Powers, Noam Scheiber, Jake Sullivan, and Tali Farhadian Weinstein. These sustaining friendships have enriched this book and its author.

My literary agent, Melissa Flashman of Janklow & Nesbit Associates, consistently provided astute advice. At no point was her guidance more crucial than when she steered this project to my distinguished editor, Erroll McDonald of Pantheon, who deftly shepherded this book to publication. At Pantheon, I also had the pleasure of working with Altie Karper, Josefine Kals McGehee, Ingrid Sterner, and Nicholas Thomson, each of whom handled the project with grace and aplomb.

During the past few years, I have presented and refined my ideas about students’ constitutional rights in a variety of settings, including workshops held at Brown University, Drake University Law School (where I also spoke as part of its Constitutional Law Center’s Distinguished Lecture Series), Harvard Law School, Loyola University Chicago School of Law, the University of Chicago Law School, the University of Washington School of Law, and Yale Law School. I appreciate the insightful feedback that participants offered me on these occasions.

Although my scholarly writings to date have been aimed primarily toward constitutional law audiences rather than education law audiences, undertaking this project has enabled me to appreciate how frequently I have chosen to explore constitutional phenomena through cases involving students. Accordingly, in a few assorted places throughout this book, I draw on themes and formulations that originally appeared in some of my prior publications: “The Consensus Constitution,” 89 Texas Law Review 755 (2011); “The Significance of the Frontier in American Constitutional Law,” 2011 Supreme Court Review 345; “Recognizing Race,” 112 Columbia Law Review 404 (2012); “Constitutional Outliers,” 81 University of Chicago Law Review 929 (2014); “Supremacies and the Southern Manifesto,” 92 Texas Law Review 1053 (2014); and “Reactionary Rhetoric and Liberal Legal Academia,” 123 Yale Law Journal 2616 (2014). I am grateful to these journals for permitting me to reproduce selected portions of my work in this volume.

The biggest debt, however, is to my family. My brother, Adam Driver, has supported my interests since before I can remember, and provided shrewd counsel on this undertaking.

For the last sixteen years, Laura Ferry has placed the first pair of eyes (not lodged in my own head) on every word of every first draft that I have written that is intended for publication. Even in our first year as law school students, she possessed an uncanny knack for appreciating when I needed a pat on the back and when I needed a kick on the backside, and for knowing precisely how much force to apply in each case. I stand honored by her belief in this project, and in disbelief that she agreed to spend her life with me. By right and by reason, this book should be dedicated to her and the two darling children that we have the privilege of raising together, Claire Ellison Driver and Darcy Eleanor Driver.

Yet this book, my first, would not exist were it not for the stimulating home environment created by my parents: Terrell Glenn Driver and Rebecca Callen Driver. They both sacrificed enormously to allow me to obtain a first-rate education and made me feel as though it were their genuine pleasure to do so. To capitalize upon Washington, D.C.’s open-enrollment school practices, my father departed our house in the wee hours of one morning, drove across the city, and slept fitfully in his car to ensure that he would be among the first parents in the required queue for out-of-district students to enroll in Alice Deal Junior High School. He also ensured that I possessed the confidence and the curiosity necessary to succeed at Deal and beyond. When the time came to apply to college, my mother insisted that I attend whatever institution of higher learning I desired, regardless of tuition, and that somehow—through scholarships, financial aid, and part-time jobs—we would find a way to make it work. Long before that day arrived, she instilled the importance of lofty expectations, the necessity of hard work, and the joy of engaging conversation. My foremost regret about this volume is that she is not alive to hold a published copy in her hands. While I know very well that she would have disagreed with some arguments in this book, I also know that she would have cherished its existence.