Notes

INTRODUCTION

1.  “Felix Frankfurter Is Dead,” New York Times, Feb. 23, 1965, 1. See Penny Singer, “The Luxury Home Market Carries On,” New York Times, July 31, 1994, N10 (noting that Seven Springs once included one thousand acres and the mansion’s square footage, among other features); “The Residence of Eugene Meyer Jr., Esq.,” House and Garden, Nov. 1918, 28–29; and Kristin Tablang, “12 Billionaire Vacation Homes,” Forbes, March 3, 2016 (noting the property’s various amenities). Donald J. Trump purchased Seven Springs in 1996, apparently intending to transform the property into a golf course, but instead he retained it as one of his residences. See ibid. See also “Father Gives Bride Away in Ceremony at the Family Home,” Washington Post, June 6, 1940, 14; Katharine Graham, Personal History 121–22 (1997) (recounting her wedding day and the fateful luncheon); and Shawn Francis Peters, Judging Jehovah’s Witnesses: Religious Persecution and the Dawn of the Rights Revolution 70 (2000) (same).

2.  Graham, Personal History, 122.

3.  Ibid. See Tracy Campbell, Short of the Glory: The Fall and Redemption of Edward F. Prichard Jr. 69 (1998) (“Frankfurter grew angry and stated that he would never again participate in a discussion about Court business”); C. David Heymann, The Georgetown Ladies’ Social Club: Power, Passion, and Politics in the Nation’s Capital 29 (2003) (describing Frankfurter’s agitation).

4.  Graham, Personal History, 122.

5.  Peters, Judging Jehovah’s Witnesses, 37. Early in the litigation process, the courts misspelled the litigants’ surname “Gobitis,” rather than the actual spelling, “Gobitas.” See ibid., 38. In addition to Peters’s book, my rendering of Gobitis draws upon several other fine works that examine the case and its backdrop in detail. See David R. Manwaring, Render unto Caesar: The Flag-Salute Controversy (1962); Noah Feldman, Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices (2010); and Vincent Blasi and Seana Shiffrin, “The Story of West Virginia State Board of Education v. Barnette: The Pledge of Allegiance and the Freedom of Thought,” in Constitutional Law Stories 409 (Michael C. Dorf ed., 2d ed. 2009). Although David Halberstam suggested that the notorious row at the wedding day luncheon stemmed from a judicial opinion involving communism, this account seems difficult to credit. See David Halberstam, The Powers That Be 172–73 (1979). Not only did the timing of the wedding fall on the heels of Gobitis, at least two people who attended the luncheon—Katharine Graham and Joseph Rauh—both identified the flag-salute decision as the case that ignited the controversy. See Graham, Personal History, 122; and Campbell, Short of the Glory, 69, 291n23.

6.  Minersville School District v. Gobitis, 310 U.S. 586, 595–96 (1940).

7.  Ibid., 598.

8.  Ibid., 597–98. Justice Harlan Fiske Stone wrote the sole dissenting opinion in Gobitis, as he criticized the majority’s decision for “surrender[ing] the constitutional protection of the liberty of small minorities to the popular will.” Gobitis, 310 U.S. at 606 (Stone, J., dissenting).

9.  Peters, Judging Jehovah’s Witnesses, 27–28.

10.  Ibid., 70.

11.  See Manwaring, Render unto Caesar, 187; Francis H. Heller, “A Turning Point for Religious Liberty,” 29 Virginia Law Review 440, 449 (1943) (observing Gobitis “was followed by almost countrywide enactment of flag salute statutes and rules”); ibid., 447 (noting increased nationalist sentiment, evident in flag sales and polling data); ibid., 449 (“Statutes were enacted holding the parents liable (criminally in some instances) if their children refused to salute the flag”); and Victor W. Rotnem and F. G. Folsom Jr., “Recent Restrictions upon Religious Liberty,” 36 American Political Science Review 1053, 1062 (1942) (noting prosecutions of Jehovah’s Witness parents for failing to have their children enrolled in school following expulsions). One superior court in Michigan City, Indiana, for example, convicted a Jehovah’s Witness mother of contributing to the delinquency of her two daughters following their expulsions and expressly noted that this outcome flowed from Gobitis. See “Sect Member Mother Guilty in Salute Case—Faces Jail If Children Fail to Honor Flag,” Chicago Daily Tribune, Aug. 9, 1942, 19.

12.  Christian Science Monitor, June 6, 1940 (quoted in Manwaring, Render unto Caesar, 159). See Alpheus Thomas Mason, Harlan Fiske Stone: Pillar of the Law 532 (1956).

13.  “The Court Abdicates,” The Christian Century, July 3, 1940, 845, 846. The Christian Century also noted, “Unpopular minorities are not always adequately protected by legislative bodies or appointed boards. The Constitution and the courts are their resource.” Ibid.

14.  Paul L. Blakely, S.J., “Omnipotent Schoolboards,” America, June 22, 1940, 286, 287.

15.  David Tyack, Seeking Common Ground: Public Schools in a Diverse Society 1 (2003). Claudia Goldin, among others, has explained how the expansion of secondary education in the United States during the first third of the twentieth century created the conditions for the U.S. economy to thrive. This widespread investment in education was a uniquely American phenomenon during this era, and—indeed—for several decades thereafter. See Claudia Goldin, “America’s Graduation from High School: The Evolution and Spread of Secondary Schooling in the Twentieth Century,” 58 Journal of Economic History 345 (1998).

16.  Alexis de Tocqueville, Democracy in America 270 (George Lawrence trans., J. P. Mayer ed., 1969) (1835).

17.  West Virginia State Board of Education v. Barnette, 319 U.S. 624, 637 (1943).

18.  Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506 (1969).

19.  See Digest of Education Statistics (2016) (noting millions of students and teachers in public schools); and Nicholas Lemann, in School: The Story of American Public Education v (Sarah Mondale and Sarah B. Patton eds., 2001) (noting the large fraction of the U.S. population within public school buildings on school days).

20.  For an elegant articulation of the idea that constitutional cases involving education reflect larger cultural anxieties, with particular attention to opinions involving freedom of expression, see Allen Rostron, “Intellectual Seriousness and the First Amendment’s Protection of Free Speech for Students,” 81 University of Missouri–Kansas City Law Review 635, 636–39 (2013).

21.  Walter Lippmann, American Inquisitors 22–23 (1928) (quoted in Jonathan Zimmerman, Whose America? Culture Wars in the Public Schools 1–2 [2002]). For an impressive treatment of these controversies, see Edward J. Larson, Summer for the Gods: The Scopes Trial and America’s Continuing Debate over Science and Religion (1997).

22.  Hillary Rodham, “Children Under the Law,” 43 Harvard Educational Review 487, 498 (1973). Rodham would not marry Bill Clinton until 1975.

23.  See David Tyack, “Introduction,” in School: The Story of American Public Education 1, 2 (“When citizens deliberate about the education of the young, they are also debating the shape of the future for the whole nation”).

24.  Barnette, 319 U.S. at 637.

25.  Brown v. Board of Education, 347 U.S. 483, 493–94 (1954).

26.  Shelton v. Tucker, 364 U.S. 479, 487 (1960).

27.  New Jersey v. T.L.O., 469 U.S. 325, 385–86 (1985) (Stevens, J., concurring in part and dissenting in part).

28.  Four scholars have produced works that most closely resemble this volume. See James E. Ryan, “The Supreme Court and Public Schools,” 86 Virginia Law Review 1335 (2000); Betsy Levin, “Educating Youth for Citizenship: The Conflict Between Authority and Individual Rights in the Public School,” 95 Yale Law Journal 1647 (1986); Anne Proffitt Dupre, “Should Students Have Constitutional Rights? Keeping Order in the Public Schools,” 65 George Washington Law Review 49 (1996); and Tyll van Geel, The Courts and American Education Law (1987). While I have learned much from each of these writings, my project differs in substantial ways. First, as a matter of audience, these works all target judges, lawyers, and legislators. While my book certainly seeks readership among those audiences, I also aim to make my work accessible to the uninitiated, for I believe that these issues demand consideration by every segment of American society. Second, as a matter of approach, my work expends substantial energy both in placing these opinions in their historical context and in making vivid the litigants’ backstories. Third, as a matter of normative commitments, the views I advance in this book depart meaningfully from previous efforts. The law review articles—characteristic of the genre—espouse the most readily discernible opinions. Professor Ryan aimed to marshal an analytically defensible reading of the Court’s existing decisions, drawing a distinction whereby the judiciary may regulate schools acting in their social capacities, but refuses to do so when schools act in their educational capacities. For her part, Professor Dupre asserted that the Supreme Court’s opinions interfered far too much with school autonomy, and in the process undermined educators’ authority. To place these positions on a crude political spectrum, both viewpoints sit well to the right of the positions that I advocate herein, as I frequently—though not invariably—contend that the Court’s modern jurisprudence evinces an unduly parsimonious conception of students’ constitutional rights. In contrast, Professor Levin’s viewpoint sits well to the left of mine, because she contends that students’ constitutional rights should assume precisely the same form beyond the schoolhouse gate that they assume within the schoolhouse gate. As will become clear during the course of this volume, I believe that Professor Levin’s approach would be unsound. Finally, as a matter of simple timing, the Supreme Court’s jurisprudence in this arena has evolved dramatically since 2000 (when Professor Ryan’s article appeared), to say nothing of the 1980s (when Professor Levin’s article and Professor van Geel’s book appeared). Since the turn of the century, major cases adjudicating students’ constitutional rights have occurred in the following realms: the First Amendment’s Free Speech Clause, the First Amendment’s Establishment Clause, the Fourth Amendment’s prohibition on unreasonable searches, the Fifth Amendment’s right to remain silent, and the Fourteenth Amendment’s Equal Protection Clause. At a minimum, then, this book is necessary to account for the major constitutional developments that have transpired during the last eighteen years.

29.  Elk Grove Unified School District v. Newdow, 542 U.S. 1, 15 (2004).

30.  Alexander M. Bickel, “Ninety-Six Congressmen Versus the Nine Justices,” New Republic, April 23, 1956, 11, 13. For an early claim that the Constitution does not touch education, see Ellwood P. Cubberley, Public Education in the United States: A Study and Interpretation of American Educational History 54 (1919) (“By the tenth amendment to the Constitution…the control of schools and education passed, as one of the unmentioned powers thus reserved, to the people of the different States to handle in any manner which they saw fit”). For a more recent claim, which elicited Bickel’s response, see “Text of 96 Congressmen’s Declaration on Integration,” New York Times, March 12, 1956, 19 (known as “the Southern Manifesto”) (“The original Constitution does not mention education. Neither does the Fourteenth Amendment nor any other Amendment.”).

31.  Joel Klein, Lessons of Hope: How to Fix Our Schools xv (2014). For judicial opinions that invoke the belief in local control over schools as a justification for nonengagement, see United States v. Lopez, 514 U.S. 549, 565–66 (1995); ibid., 580–81 (Kennedy, J., concurring); and Milliken v. Bradley, 418 U.S. 717, 741–42 (1974). For similar reasoning in the legal literature, see Anne Proffitt Dupre, Speaking Up: The Unintended Costs of Free Speech in Public Schools 31 (2009) (“After Tinker, the last word regarding student speech within this singularly local endeavor—the schoolhouse—resides in unelected federal judges, rather than elected school board members or their agents (school principals)”). For works chronicling the expanded federal role within the educational sphere, see Gareth Davies, See Government Grow: Education Politics from Johnson to Reagan (2007); Carl F. Kaestle and Marshall S. Smith, “The Federal Role in Elementary and Secondary Education, 1940–1980,” 52 Harvard Education Review 384 (1982); and William J. Reese, America’s Public Schools: From the Common School to “No Child Left Behind” (2005).

32.  Barnette, 319 U.S. at 640. See J. Harvie Wilkinson III, “Goss v. Lopez: The Supreme Court as School Superintendent,” 1975 Supreme Court Review 25, 63 (contending that in recent education decisions “the modern Court has demonstrated a faith that judicial competence knows few horizons”); and Lino A. Graglia, “Constitutional Law Without the Constitution: The Supreme Court’s Remaking of America,” in “A Country I Do Not Recognize”: The Legal Assault on American Values 1, 29–30 (Robert H. Bork ed., 2005) (contending that the Court’s education decisions demonstrate unwarranted faith in matters beyond its ken).

33.  Joshua M. Dunn and Martin R. West, “The Supreme Court as School Board Revisited,” in From Schoolhouse to Courthouse: The Judiciary’s Role in American Education 3, 4 (Joshua M. Dunn and Martin R. West eds., 2009).

34.  Hobson v. Hansen, 269 F. Supp. 401, 517 (D.D.C. 1967). See also Rodham, “Children Under the Law,” 506 (“Legislation granting rights in either category probably is preferable to judicial opinions decreeing them, but both governmental branches should be pressed to reexamine and revise children’s status under the law. Legal positions will contribute to a new social attitude toward children’s rights.”).

35.  For prominent scholars who have portrayed the Supreme Court as a fragile institution, one that overwhelmingly reflects the consensus views of the American people, see, for example, Barry Friedman, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution (2009); and Michael J. Klarman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality (2004). For a related idea, see Jack M. Balkin, “What Brown Teaches Us about Constitutional Theory,” 90 Virginia Law Review 1537, 1546 (2004). For a foundational work that inspired much of the subsequent skepticism of the judiciary’s role in American society, see Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (1991). For works that challenge these conceptions of an enfeebled Supreme Court, see Justin Driver, “Why Law Should Lead,” New Republic, April 8, 2010, 28; Justin Driver, “The Consensus Constitution,” 89 Texas Law Review 755 (2011); Justin Driver, “Constitutional Outliers,” 81 University of Chicago Law Review 929 (2014); Justin Driver, “Reactionary Rhetoric and Liberal Legal Academia,” 123 Yale Law Journal 2616 (2014); and Richard H. Pildes, “Is the Supreme Court a ‘Majoritarian’ Institution?,” 2010 Supreme Court Review 103.

36.  See Corinna Barrett Lain, “God, Civic Virtue, and the American Way: Reconstructing Engel,” 67 Stanford Law Review 479 (2015).

37.  Barnette, 319 U.S. at 637.

38.  See, for example, Pickering v. Board of Education, 391 U.S. 563 (1968) (articulating a standard governing teachers’ free speech rights); Board of Education v. Rowley, 458 U.S. 176 (1982) (interpreting the All Handicapped Children Act, a predecessor to the IDEA); Regents of the University of California v. Bakke, 438 U.S. 265 (1978) (upholding the permissibility of affirmative action in higher education); Rodney A. Smolla, The Constitution Goes to College: Five Constitutional Ideas That Have Shaped the American University (2011); Mark Kelman and Gillian Lester, Jumping the Queue: An Inquiry into the Legal Treatment of Students with Learning Disabilities (1997); and David Rubin and Steven Greenhouse, The Rights of Teachers: The Basic ACLU Guide to a Teacher’s Constitutional Rights (1983). For an insightful cultural history of disputes over teachers in the United States, see Dana Goldstein, The Teacher Wars: A History of America’s Most Embattled Profession (2014).

1 EARLY ENCOUNTERS WITH RACE, CULTURE, RELIGION, AND PATRIOTISM

1.  For helpful background on and analysis of Cumming v. Richmond County Board of Education, 175 U.S. 528 (1899), see J. Morgan Kousser, “Separate but Not Equal: The Supreme Court’s First Decision on Racial Discrimination in Schools,” 46 Journal of Southern History 17, 28 (1980); C. Ellen Connally, “Justice Harlan’s ‘Great Betrayal’? A Reconsideration of Cumming v. Richmond County Board of Education,” 25 Journal of Supreme Court History 72 (2000); Leroy Davis, A Clashing of the Soul: John Hope and the Dilemma of African American Leadership and Black Higher Education in the Early Twentieth Century 33–34 (1988); Michael J. Klarman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality 45–52, 57–60 (2004); Richard Kluger, Simple Justice: The History of Brown v. Board of Education and Black America’s Struggle for Equality 82 (2004 ed.) (1975); and Linda Przybyszewski, The Republic According to John Marshall Harlan 99–102 (1999).

2.  “The Ware High School,” Augusta Chronicle, Dec. 24, 1897, 4.

3.  “The Ware High School,” Augusta Chronicle, March 25, 1898, 4.

4.  Cumming, 175 U.S. at 544.

5.  Ibid., 545.

6.  Editorial, Cleveland Gazette, Dec. 30, 1899, 2. See also “The Ware High School Case,” Augusta Chronicle, Dec. 19, 1899, 1; “No Negro High School,” Macon Telegraph, Dec. 19, 1899, 2; “Fourteenth Amendment Decision,” Washington Post, Dec. 19, 1899, 5; Comment, “Schools,” 9 Yale Law Journal 227, 229 (1899); and Note, “Constitutional Law,” 6 Virginia Law Register 57, 57 (1900).

7.  See Kousser, “Separate but Not Equal,” 43–44; James D. Anderson, The Education of Blacks in the South, 1860–1935 192–93 (1988). For a probing examination of whether passing should be regarded as an act of racial disloyalty, see Randall Kennedy, Sellout: The Politics of Racial Betrayal 144–85 (2008).

8.  Diane Ravitch, Left Back: A Century of Battles over School Reform 367–68 (2000); Klarman, From Jim Crow to Civil Rights, 46–47.

9.  Klarman, From Jim Crow to Civil Rights, 43, 45–47. For a related formulation, see Erwin Chemerinsky, “Separate and Unequal: American Public Education Today,” 52 American University Law Review 1461 (2003). See also Plessy v. Ferguson, 163 U.S. 537, 544–45, 551 (1896) (identifying Congress’s decision to impose racial segregation on Washington, D.C.’s public schools as a sort of bedrock form of segregation that did not violate the Fourteenth Amendment).

10.  Plessy, 163 U.S. at 540 (quoting Separate Car Act, 1890 La. Acts. No. 111, 152 [1890]).

11.  Ibid., 550.

12.  See Klarman, From Jim Crow to Civil Rights, 45–47; and Justin Driver, “The Significance of the Frontier in American Constitutional Law,” 2011 Supreme Court Review 345, 363–69.

13.  G. Edward White, The American Judicial Tradition: Profiles of Leading American Judges 109 (3d ed. 2007).

14.  See Kousser, “Separate but Not Equal,” 40–42 (recounting various explanations for Harlan’s vote in Cumming); Connally, “Justice Harlan’s ‘Great Betrayal’?,” 86 (advancing a sympathetic assessment of Harlan’s vote in Cumming); and Benno C. Schmidt Jr., “Principle and Prejudice: The Supreme Court and Race in the Progressive Era,” 82 Columbia Law Review 444, 470 (1982) (contending “more has been made of Cumming…than is justified, since the case was mishandled by counsel”).

15.  Plessy, 163 U.S. at 559 (Harlan, J. dissenting).

16.  Ibid., 561.

17.  Ibid., 559. For a prominent article criticizing the most famous portion of Harlan’s dissent in Plessy, see Neil Gotanda, “A Critique of ‘Our Constitution Is Color-Blind,’ ” 44 Stanford Law Review 1 (1991).

18.  See Mark V. Tushnet, “The Politics of Equality in Constitutional Law: The Equal Protection Clause, Dr. Du Bois, and Charles Hamilton Houston,” 74 Journal of American History 884, 886 (1987).

19.  My appraisal of Justice Harlan’s position on segregated schools tracks the assessments articulated by some previous scholars. See Kousser, “Separate but Not Equal,” 42 (contending Harlan “simply desired the result in Cumming”); and Przybyszewski, Republic According to John Marshall Harlan, 100–101 (contending that, in Harlan’s view, public schools involved social rights but that travel accommodations involved civil rights).

20.  For helpful factual background and analysis of Lum v. Rice, see Jeannie Rhee, “In Black and White: Chinese in the Mississippi Delta,” 19 Journal of Supreme Court History 117, 122–25 (1994); G. Edward White, “The Lost Episode of Gong Lum v. Rice,” 18 Green Bag 2d 191 (2015); Klarman, From Jim Crow to Civil Rights, 146–48; Kluger, Simple Justice, 120–21; Taunya Lovell Banks, “Both Edges of the Margin: Blacks and Asians in Mississippi Masala, Barriers to Coalition Building,” 5 Asian Law Journal 7, 13–18 (1998); and James W. Loewen, The Mississippi Chinese: Between Black and White 27, 66–68, 74–83 (2d ed. 1988).

21.  Brief for Plaintiff, Lum, 275 U.S. 78, at *9–*10 (1927).

22.  Ibid., 13–14.

23.  Ibid., 10. In a similar vein, the brief stated, “[H]as not the Chinese citizen the same right to protection that the Caucasian citizen has? Are they not all equal before the law?…Can we arrogate to ourselves the superior right to so organize the public school system as to protect our racial integrity without regard to the interests or welfare of citizens of other races?” Ibid., 14.

24.  Brief for the Defendants, Lum, 275 U.S. 78, *36 (1927).

25.  Lum v. Rice, 275 U.S. 78, 85 (1927).

26.  Ibid., 87.

27.  Ibid., 86–87.

28.  Arthur E. Sutherland, “Book Review,” 79 Harvard Law Review 222, 226 (1965) (reviewing Alpheus Thomas Mason, William Howard Taft: Chief Justice [1964]). See “A. Sutherland, Legal Scholar, Is Dead at 71,” Harvard Crimson, March 10, 1973. Professor Michael Klarman’s view of Lum v. Rice sits almost diametrically opposite from Professor Sutherland’s portrayal. In Klarman’s view, “For the Court to have invalidated school segregation in 1927 seems almost inconceivable.” Klarman, From Jim Crow to Civil Rights, 147.

29.  “Race Segregation,” Los Angeles Times, Nov. 23, 1927, A4. See “Upholds Segregation of Chinese in Schools: Supreme Court Validates Mississippi Action on Girl Barred from White Classes,” New York Times, Nov. 22, 1927, 14; “Rules Chinese Girl Must Go to Negro School,” Chicago Tribune, Nov. 22, 1927, 38; and “Supreme Court Upholds Segregation in Schools,” Washington Post, Nov. 22, 1927, 14.

30.  “Constitutional Law,” 37 Yale Law Journal 518, 519 (1928); and “Recent Important Decisions,” 2 Mississippi Law Journal 251, 258 (1929). See also William Gorin, “Constitutional Law,” 8 Boston University Law Review 127, 134 (1928) (straightforwardly recounting Lum); and Hoke F. Henderson, “Separation of Races in Schools,” 32 Law Notes 141, 150 (1928) (observing that race prejudice “is not created by law and probably cannot be changed by law”).

31.  “True to Form,” Chicago Defender, Oct. 22, 1927, A2. For a recent book chronicling the significance of The Chicago Defender to the nation, see Ethan Michaeli, The Defender: How the Legendary Black Newspaper Changed America (2016).

32.  “Constitutional Law,” 16 California Law Review 346, 347 (1928); and Comment, “Racial Segregation in Public Education: Gong Lum v. Rice,” 2 St. John’s Law Review 215, 216 (1928).

33.  For insightful background on and analysis of Meyer v. Nebraska, see William G. Ross, Forging New Freedom: Nativism, Education, and the Constitution, 1917–1927 2–5 (1994); Barbara Bennett Woodhouse, “ ‘Who Owns the Child?’ Meyer and Pierce and the Child as Property,” 33 William and Mary Law Review 995, 1077 (1992); and Arthur F. Mullen, Western Democrat 214–20 (1940).

34.  “Cleaning the Language,” New York Times, July 7, 1918, 38.

35.  Ibid.; Louise Weinberg, “The McReynolds Mystery Solved,” 89 Denver University Law Review 133, 136 (2011).

36.  “A Help to Americanization,” Washington Post, Dec. 28, 1919, 4. See also John Walker Harrington, “German Becoming Dead Tongue Here,” New York Times, July 14, 1918, 34.

37.  “Nebraska Germans Remain Unchanged,” Boston Globe, Sept. 21, 1919, E5. See “Making English Constitutional,” New York Tribune, Feb. 26, 1923, 8 (“It is astounding that any one can question the right and the necessity of making English the fundamental language in all schools in America”).

38.  “Urges Unity of Language,” New York Times, Nov. 10, 1918, 19.

39.  “Forbid New German Classes in Schools,” New York Times, May 25, 1918, 14.

40.  Sheila Curran Bernard and Sarah Mondale, “ ‘You Are an American,’ ” in School: The Story of American Public Education 95 (Sarah Mondale and Sarah B. Patton eds., 2001).

41.  Ellwood P. Cubberley, Public Education in the United States 341 (1919). For information on Cubberley’s background, see Ravitch, Left Back, 95–98; and Bernard and Mondale, “ ‘You Are an American,’ ” 97–98.

42.  Ellwood P. Cubberley, Changing Conceptions of Education 15 (1909); and Cubberley, Public Education in the United States, 342. In 1909, Cubberley identified schools as having a large role to play in achieving nativist ends by dissolving immigrant enclaves. “Everywhere these people tend to settle in groups or settlements, and to set up here their national manners, customs, and observances,” Cubberley instructed. “Our task is to break up these groups or settlements, to assimilate and amalgamate these people as a part of our American race, and to implant in their children, so far as can be done, the Anglo-Saxon conception of righteousness, law and order, and popular government.” Cubberley, Changing Conceptions of Education, 15.

43.  Various authorities arrive at slightly different conclusions regarding precisely how many states enacted language prohibitions during this era. See Ross, Forging New Freedoms, 61 (contending thirty-seven states enacted foreign-language prohibitions); Rosemary C. Salomone, True American: Language, Identity, and the Education of Immigrant Children 35 (2010) (contending that thirty-four states enacted foreign-language prohibitions); and David Tyack, Seeking Common Ground: Public Schools in a Diverse Society 77 (2003) (contending that thirty-five states enacted foreign-language prohibitions).

44.  Meyer v. Nebraska, 262 U.S. 390, 400 (1923).

45.  Ibid., 401.

46.  Ibid., 402.

47.  Ibid., 399.

48.  Ibid., 400.

49.  Bartels v. Iowa, 262 U.S. 404, 412 (1923) (Holmes, J., dissenting) (emphasis added).

50.  “The Right to Learn Foreign Tongues,” New York Times, June 6, 1923, 20.

51.  “Foreign Language Decision,” Washington Post, June 6, 1923, 6. The Washington Post also commented, “In other lands and at other times discrimination against certain languages has been made the engine of oppression all the more cruel because it was of the intellectual kind. The interpretation given by the Supreme Court, in [Meyer,]…will effectually prevent any such sinister practice in the United States.” Ibid.

52.  “Back to Freedom,” Boston Globe, June 6, 1923, 16. For additional newspaper commentary praising Meyer, see “The Decision in the Language Cases,” Chicago Tribune, June 26, 1923, 8 (contending the opinion should elicit “satisfaction not alone among foreign born persons, but also among the greater part of native born Americans”).

53.  Ellwood P. Cubberley, “The American School Program from the Standpoint of the Nation,” 61 National Education Association: Addresses and Proceedings of the Sixty-First Annual Meeting 180, 181 (1923).

54.  I. N. Edwards, “State Educational Policy and the Supreme Court of the United States,” 26 Elementary School Journal 22, 25, 29 (1925). At various times in his article, Professor Edwards attempted to assume a pose of neutrality toward Meyer. But the article—when read as a whole—leaves no doubt that its author construes the opinion as representing improper judicial encroachment into the educational arena. See ibid., 29 (“[S]tate educational policy is, as a rule, not a matter of law”).

55.  R. T. W. Duke Jr. and Beirne Stedman, “The Fourteenth Amendment: Aliens Protected by It, but the English Language Not,” 9 Virginia Law Register 371, 378 (1923).

56.  Ibid., 379.

57.  Charles E. Hughes, “Liberty and Law,” 11 American Bar Association Journal 563, 566 (1925).

58.  See Ross, Forging New Freedoms, 206.

59.  For illuminating background, context, and analysis of Pierce v. Society of Sisters, see Paula Abrams, Cross Purposes: Pierce v. Society of Sisters and the Struggle over Compulsory Education (2009); Tyll van Geel, The Courts and American Education Law 21–22 (1987); Ross, Forging New Freedoms, 148–73; David Tyack, Thomas James, and Aaron Benavot, Law and the Shaping of Public Education, 1785–1954 177–90 (1987); John Higham, Strangers in the Land: Patterns of American Nativism, 1860–1925 288–91, 296–99 (2d ed. 1965); David B. Tyack, “The Perils of Pluralism: The Background of the Pierce Case,” 74 American Historical Review 74, 74–77 (1968); Kenneth B. O’Brien Jr., “Education, Americanization, and the Supreme Court: The 1920’s,” 13 American Quarterly 161 (1961); “He That Soweth Sparingly,” Portland Telegram, Oct. 26, 1922, 1; “Klan Candidate Carries Oregon,” New York Times, Nov. 8, 1922, 3; and “What the Klan Did in Oregon Elections,” New York Times, Dec. 3, 1922, 1.

60.  See Abrams, Cross Purposes, 125–26; WPA Adult Education Project, History of Education in Portland 101–5 (Howard McKinley Corning and Alfred Powers eds., 1937); and Sisters of the Holy Names of Jesus and Mary, Gleanings of Fifty Years: The Sisters of Holy Names of Jesus and Mary in the Northwest, 1859–1909 123–27 (1909). In addition to the Society of Sisters, a private school called Hill Military Academy challenged the Oregon referendum.

61.  Pierce v. Society of Sisters, 268 U.S. 510, 534 (1925).

62.  Ibid., 534–35.

63.  Ibid., 535.

64.  “Intolerance Rebuked,” Los Angeles Times, June 10, 1925, A4.

65.  “A Bad Law Voided,” New York Times, June 2, 1925, 22.

66.  “Child Is Not the Mere Creature of the State,” Boston Globe, June 2, 1925, A6.

67.  “The Oregon School Law,” Chicago Tribune, June 3, 1925, 8.

68.  See “The Blight of Standardization,” Washington Post, June 7, 1925, E1 (contending the Oregon measure had “practically…taken the child away from parental control and made it the ward or the chattel of the State”); “The Supreme Court Speaks,” America, June 13, 1925, 208 (calling the opinion “a victory over the forces which would make every American the abject creature of an omnipotent state”); and “Oregon School Law Invalid,” Journal of Education, June 4, 1925, 652 (touting the Court for its rejection of the notion that “the individual is a chattel of the ruling authorities”).

69.  “The Law and the Schools,” 11 Virginia Law Register 230, 231 (1925). For a more sanguine assessment of Society of Sisters—one that is representative of the approving contemporaneous commentary—see Clarence E. Martin, “The American Judiciary and Religious Liberty,” 13 Virginia Law Register 641, 656–57 (1928).

70.  Felix Frankfurter, “Can the Supreme Court Guarantee Toleration?,” New Republic, June 17, 1925, 85 (reprinted in Felix Frankfurter on the Supreme Court 174, 175 [Philip Kurland ed., 1970]).

71.  Ibid., 86.

72.  Ibid. See Plato, “The Apology of Socrates,” in The Trials of Socrates: Six Classic Texts 26, 26n1 (C. D. C. Reeve ed., 2002) (editor’s note).

73.  Frankfurter, “Can the Supreme Court Guarantee Toleration?,” 86.

74.  Ibid., 87.

75.  “Private Schools in Oregon,” Los Angeles Times, Nov. 12, 1922, 4. See generally “Oregon’s Outlawing of Church Schools,” Literary Digest, Jan. 6, 1923, 34. For a leading constitutional authority who has portrayed Society of Sisters as a case of modest significance because it involved the judicial invalidation of a legislative “outlier,” see Klarman, From Jim Crow to Civil Rights, 453–54. For an analytical critique of this influential concept within constitutional law, see Justin Driver, “Constitutional Outliers,” 81 University of Chicago Law Review 929 (2014). In the terminology that I offer in that article, Society of Sisters can be regarded as an “upstart” variant of outlier.

76.  “The Oregon School Law in Court,” Literary Digest, April 18, 1925, 32. See also Tyack, James, and Benavot, Law and the Shaping of Public Education, 179 (noting that plans had been hatched in a dozen additional states to abolish nonpublic schools); “The Oregon School Law,” New York Times, Aug. 5, 1923, E4 (recounting plots to abolish nonpublic schools in California and Washington); Ernest Harvier, “What the Klan Did in Oregon Elections,” New York Times, Dec. 3, 1922, 40 (“The ‘school question’ has always been a live wire in American politics….The experiment of Oregon…will be of interest elsewhere.”).

77.  “A Bad Law Voided,” New York Times, June 2, 1925, 22.

78.  “The Oregon and Nebraska Acts,” Chicago Tribune, Oct. 19, 1924, 8.

79.  Laurence H. Tribe, American Constitutional Law 902–4 (1978).

80.  See Robert H. Bork, The Tempting of America: The Political Seduction of the Law 49 (1990) (“[B]oth of those decisions could have been laid under the guarantee of freedom of speech in the first amendment, and the application of Oregon’s statute to the Society of Sisters might have been invalidated as well under that amendment’s guarantee of the free exercise of religion”); Griswold v. Connecticut, 381 U.S. 479, 482 (1965) (opinion of Douglas, J.) (identifying Pierce and Meyer as First Amendment opinions); Troxel v. Granville, 530 U.S. 57, 95 (2000) (Kennedy, J., dissenting) (“Pierce and Meyer, had they been decided in recent times, may well have been grounded upon First Amendment principles protecting freedom of speech, belief, and religion”). It is not altogether clear, though, that relying upon the Free Exercise Clause, taken in isolation, would suffice to invalidate Oregon’s statute as applied to all entities. Even accepting its invalidation as applied to the Society of Sisters and other parochial schools, one of the challengers to the referendum was the Hill Military Academy—a private institution that was evidently unaffiliated with any church. It might well be argued that the Oregon statute should be permitted to abolish such private entities.

81.  Obergefell v. Hodges, 135 S. Ct. 2584, 2600 (2015). Chief Justice Roberts, Justice Alito, Justice Scalia, and Justice Thomas all cast dissenting votes in the same-sex marriage case.

82.  Henry Butler Schwartz, “The Foreign Language Schools of Hawaii,” School and Society, Jan. 23, 1926, 98, 99, 101. For helpful background and analysis on Farrington v. Tokushige, see Farrington v. Tokushige, 273 U.S. 284, 290–98 (1927); Ross, Forging New Freedoms, 174–84; “The Cross Words at the Crossroads,” Literary Digest, March 26, 1927, 10; O’Brien, “Education, Americanization, and the Supreme Court,” 170–71; and Mark G. Yudof et al., Educational Policy and the Law 53–55 (5th ed. 2012).

83.  Tokushige, 273 U.S. at 298.

84.  Ibid., 299.

85.  Ibid., 298.

86.  Ibid., 298–99 (emphasis added).

87.  “Hawaii’s School Problem,” New York Times, Feb. 23, 1927, 22.

88.  “Hawaii, Oriental or Occidental?,” New York Times, July 24, 1927, E8.

89.  Ross, Forging New Freedoms, 183.

90.  “Cross Words at the Crossroads,” 10.

91.  See Schwartz, “Foreign Language Schools of Hawaii,” 102–3.

92.  Michael J. Klarman, “Social Reform Litigation and Its Challenges: An Essay in Honor of Justice Ruth Bader Ginsburg,” 32 Harvard Journal of Law and Gender 251, 267 (2009). See also David E. Bernstein and Ilya Somin, “Judicial Power and Civil Rights Reconsidered,” 114 Yale Law Journal 591, 641 (2004) (describing McReynolds as “notoriously racist and anti-Semitic”). For an insightful overview of Justice McReynolds, see The Forgotten Memoir of John Knox: A Year in the Life of a Supreme Court Clerk in FDR’s Washington vii–xxii (Dennis J. Hutchinson and David J. Garrow eds., 2002).

93.  Weinberg, “McReynolds Mystery Solved,” 142.

94.  See ibid., 159.

95.  My appraisal of Justice McReynolds was influenced by Professor Ross’s incisive book. See Ross, Forging New Freedoms, 186–88.

96.  For illuminating scholarship on West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), including its background, see David R. Manwaring, Render unto Caesar: The Flag-Salute Controversy (1962); Shawn Francis Peters, Judging Jehovah’s Witnesses: Religious Persecution and the Dawn of the Rights Revolution 244–59 (2000); Vincent Blasi and Seana V. Shiffrin, “The Pledge of Allegiance and the Freedom of Thought,” in Constitutional Law Stories 433–75 (Michael C. Dorf ed., 2004); Betsy Levin, “Educating Youth for Citizenship: The Conflict Between Authority and Individual Rights in the Public School,” 95 Yale Law Journal 1647 (1986); Noah Feldman, Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices 226–34 (2010); Catherine J. Ross, Lessons in Censorship: How Schools and Courts Subvert Students’ First Amendment Rights 16–21 (2015); Anne Proffitt Dupre, Speaking Up: The Unintended Costs of Free Speech in Public Schools 149–57 (2009); Douglas E. Abrams, “Justice Jackson and the Second Flag-Salute Case: Reason and Passion in Opinion-Writing,” 36 Journal of Supreme Court History 30, 32–33 (2011); Leonard A. Stevens, Salute! The Case of the Bible vs. the Flag 125–38 (1973); and Gregory L. Peterson et al., “Recollections of West Virginia State Board of Education v. Barnette,” 81 St. John’s Law Review 755, 758–65 (2007).

97.  “A Terrible Decision,” St. Louis Post-Dispatch, July 24, 1940, 2C.

98.  Fred Rodell, “Felix Frankfurter, Conservative,” Harper’s, Oct. 1, 1941, 449, 457. See also Laura Kalman, Legal Realism at Yale, 1927–1960 (1986) (chronicling Rodell’s disdain for Frankfurter’s jurisprudence); and John Raeburn Green, “Liberty Under the Fourteenth Amendment: 1942–1943,” 28 Washington University Law Quarterly 251, 263 (1943) (“Seldom has any decision of the Court been so generally and so sharply criticized”). See also Francis H. Heller, “A Turning Point for Religious Liberty,” 29 Virginia Law Review 440, 450–52 (1943) (“Law Review comments were virtually unanimous in rejecting the majority view”); and Henry Steele Commager, Majority Rule and Minority Rights 3 (1943) (“Liberals…almost to a man denounced the opinion as illiberal”).

99.  Edward S. Corwin, Constitutional Revolution Ltd. 112 (1941). See also William F. Andersen, “Constitutional Law,” 39 Michigan Law Review 149, 152 (1940) (“If individual liberties are something more than the by-product of a democratic process, if in fact they have an intrinsic value worthy of protection, it is difficult to justify a decision which subordinates a fundamental liberty to a legislative program of questionable worth”). For a broad sampling of the substantial academic criticisms of Gobitis, see Heller, “Turning Point for Religious Liberty,” 451–52.

100.   Beulah Amidon, “Can We Afford Martyrs?,” Survey Graphic, Sept. 1940, 457. See Victor W. Rotnem and F. G. Folsom Jr., “Recent Restrictions upon Religious Liberty,” 36 American Political Science Review 1053, 1061–63 (1942). After a violent outbreak occurred in New England post-Gobitis, the New York Herald Tribune editorialized in 1940, “We have the ‘liberal’ members of the Supreme Court to thank—at least in part—for the religious riots which have been breaking out in Maine….[T]he Supreme Court’s recent decision that the Jehovah’s Witnesses must salute the flag seems to have convinced several hundred Maine rustics that it is their personal responsibility to see this decree carried out.” Peters, Judging Jehovah’s Witnesses, 82. Similarly, another observer stated, “It is no accident, that this long and violent succession of outrages against the Witnesses in recent weeks was coincident with the unfortunate decision of the Supreme Court refusing to interfere with the action of authorities in demanding the salute.” Ibid.

101.   Jones v. Opelika, 316 U.S. 584, 624 (1942) (dissent of Black, J., Douglas, J., and Murphy, J.). See Robert H. Jackson, The Struggle for Judicial Supremacy: A Study of a Crisis in American Power Politics 284, 284n48 (1941).

102.   Richard A. Posner, The Problems of Jurisprudence 147 (1990).

103.   Barnette, 319 U.S. at 641–42. For Barnette’s language subtly reframing the case as involving free speech, see ibid., 635–36 (“The question which underlies the flag salute controversy is whether such a ceremony so touching matters of opinion and political attitude may be imposed upon the individual by official authority under powers committed to any political organization under our Constitution”); ibid., 641 (“Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard. It seems trite but necessary to say that the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings.”).

104.   Ibid., 642. My reading of Barnette is influenced by the work of Professor Christopher Eisgruber, who is now president of Princeton University. As Eisgruber has argued, “Jackson and his audience…have one peculiarly American set of stars in mind throughout the opinion: the stars on the flag. Throughout [Barnette], but especially by his reference to the ‘constitutional constellation,’ Jackson identifies America’s flag with America’s constitutional principles. The closing passage is a form of flag-waving.” Christopher L. Eisgruber, “Is the Supreme Court an Educative Institution?,” 67 NYU Law Review 961, 979 (1992).

105.   Barnette, 319 U.S. at 640.

106.   Ibid., 637–38.

107.   Minersville School District v. Gobitis, 310 U.S. 586, 600 (1940).

108.   Barnette, 319 U.S. at 637.

109.   Ibid., 646–47 (Frankfurter, J., dissenting). Justices Roberts and Reed also dissented in Barnette, but neither wrote an opinion nor joined Justice Frankfurter’s dissent. See ibid., 642–43. See Feldman, Scorpions, 229–31 (noting that a few of Frankfurter’s colleagues pleaded with him to remove the allusion to his religious identity); Dupre, Speaking Up, 156 (analyzing Frankfurter’s reference to his Jewish identity in Barnette); and H. N. Hirsch, The Enigma of Felix Frankfurter 135–38 (2d ed. 2014) (1981) (analyzing Frankfurter’s reference to his Jewish identity in Barnette).

110.   Barnette, 319 U.S. at 666–67 (Frankfurter, J., dissenting).

111.   Ibid., 670–71 (emphasis added).

112.   Archibald MacLeish and E. F. Prichard Jr., Law and Politics: Occasional Papers of Felix Frankfurter, 1913–1938 195–97 (1939) (reprinting “Can the Supreme Court Guarantee Toleration?”).

113.   “Blot Removed,” Time, June 21, 1943, 16.

114.   “Goodbye to Gobitis,” America, June 26, 1943, 324.

115.   “Score for Freedom No. 2,” Saturday Evening Post, July 10, 1943, 104. See “Victory for Freedom,” Washington Post, May 5, 1943, 14 (“Both the tenets and the evangelical practices of the Witnesses are distinctly unpopular with many Americans….The question, however, is not whether the Witnesses have invited persecution but whether religious liberty can be said to exist where the suppression of any sect, however fanatical, is given a legal sanction.”). The New York Times editorial board also stated post-Barnette, “The very fact that the conduct and manners of a good many [Jehovah’s Witnesses] strike some of us as outrageous makes the test more searching.” “The Court on the Flag Salute,” New York Times, June 19, 1943, 12.

116.   “A Decision That Decides,” Wall Street Journal, June 16, 1943, 6.

117.   W. H. Lawrence, “Civil Liberties Gain by the Flag Decision,” New York Times, June 20, 1943, E10.

118.   Thomas Reed Powell, “The Flag-Salute Case,” New Republic, July 5, 1943, 16, 18. See Manwaring, Render unto Caesar, 236–37 (recounting contemporaneous reactions to Barnette in law reviews).

119.   Madaline Kinter Remmlein, “Editorial Notes,” 12 George Washington Law Review 55, 80 (1943).

120.   Ibid., 78.

121.   As Manwaring has noted, “On the whole…state and local compliance with the Barnette ruling was immediate and substantial.” Manwaring, Render unto Caesar, 242. Furthermore, Manwaring has stated, “The Barnette decision settled the flag-salute controversy, apparently permanently; the issue has not arisen again since 1946. In this aspect,…Barnette was applied willingly and to the full extent of its logic by the state courts.” Ibid., 243.

122.   Ross, Lessons in Censorship, 21 (citing Letter, Robert H. Jackson to Armistead Brown, July 13, 1943, box 127, folder 11, Robert Jackson Papers, Library of Congress).

2 FREEDOM OF EXPRESSION FROM BLACK ARMBANDS TO BONG HITS 4 JESUS

1.  For insightful background on Tinker v. Des Moines Independent Community School District, see John W. Johnson, “Behind the Scenes in Iowa’s Great Case: What Is Not in the Official Record of Tinker v. Des Moines Independent Community School District,” 48 Drake Law Review 473 (2000); and John W. Johnson, The Struggle for Student Rights: Tinker v. Des Moines and the 1960s 1–15, 29–66 (1997). See also Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 504–5, 509n3 (1969); Joint Appendix, Tinker v. Des Moines Independent Community School District, at *15–*18, *22–*23, *26–*29, *30–*32, *45, *49–*51 (1968); Donald Janson, “Des Moines Stirs Liberties Protest,” New York Times, Dec. 22, 1965, 3; Jack Magarrell, “Extend Ban on Arm Bands; D.M. School Board Split on Issue, 4–3,” Des Moines Register, Dec. 22, 1965, 1; Stephen Seplow, “Dispute over High School Chant of ‘Beat Viet Cong,’ ” Des Moines Register, Dec. 20, 1965, 1; and Jamin B. Raskin, “No Enclaves of Totalitarianism: The Triumph and Unrealized Promise of the Tinker Decision,” 58 American University Law Review 1193 (2009).

2.  Tinker, 393 U.S. at 506.

3.  Ibid., 511. See ibid., 510–11 (criticizing Des Moines schools for selecting one “particular symbol—black armbands worn to exhibit opposition to this Nation’s involvement in Vietnam—[and] singl[ing it] out for prohibition”).

4.  Ibid., 512 (quoting Keyishian v. Board of Regents, 385 U.S. 589, 603 [1967]) (internal quotation marks omitted, alteration in original).

5.  Ibid.

6.  Ibid., 507–8.

7.  Ibid., 514.

8.  Ibid., 512–13 (quoting Burnside v. Byars, 363 F.2d 744, 749 [5th Cir. 1966]).

9.  Ibid., 509.

10.  Ibid., 508–9 (internal citation omitted). Both Justice Stewart and Justice White authored brief concurring opinions. See ibid., 514–15 (Stewart, J., concurring); and ibid., 515 (White, J., concurring).

11.  Fred P. Graham, “High Court Upholds a Student Protest,” New York Times, Feb. 25, 1969, 1, 25.

12.  Tinker, 393 U.S. at 522 (Black, J., dissenting).

13.  Ibid., 515, 518. See ibid., 525–26 (“I, for one, am not fully persuaded that school pupils are wise enough, even with this Court’s expert help from Washington, to run the 23,390 public school systems in our 50 States”).

14.  Ibid., 525.

15.  Ibid., 524–25.

16.  Ibid., 518, 525. Justice Harlan also wrote a short dissenting opinion, which would have accorded broader deference to school authorities than Tinker allowed. See ibid., 526 (Harlan, J., dissenting).

17.  “The Armband Case,” Des Moines Register, Feb. 27, 1969, 8.

18.  “Rights for Students,” Boston Globe, Feb. 27, 1969, 14.

19.  “Armbands Yes, Miniskirts No,” New York Times, Feb. 26, 1969, 46.

20.  Fred P. Graham, “Freedom of Speech, but Not License,” New York Times, March 2, 1969, E11.

21.  Charles Alan Wright, “The Constitution on Campus,” 22 Vanderbilt Law Review 1027, 1053, 1086 (1969). See also Theodore F. Denno, “Mary Beth Tinker Takes the Constitution to School,” 38 Fordham Law Review 35 (1969).

22.  “Freedom of Expression in the Schools,” Washington Post, Feb. 26, 1969, A22. The New York Times called Black’s dissent in Tinker “peppery.” “Armbands Yes, Miniskirts No,” 46.

23.  “Armband Case,” 8.

24.  “Rights for Students,” 14.

25.  “Revolt Invited in the Romper Set,” Chicago Tribune, Feb. 26, 1969, 20.

26.  Johnson, “Behind the Scenes in Iowa’s Great Case,” 486, 488.

27.  Roger K. Newman, Hugo Black: A Biography 592 (2d ed. 1997) (1994).

28.  See, for example, Catherine J. Ross, Lessons in Censorship: How Schools and Courts Subvert Students’ First Amendment Rights 32 (2015).

29.  Newman, Hugo Black, 592.

30.  For one case where Justice Black refused to recognize the free speech rights of civil rights protesters, see Adderley v. Florida, 385 U.S. 39 (1966). See Lyle Denniston, “High Court Studies Classroom Protests,” Washington Evening Star, Nov. 13, 1968, D16 (noting Black’s cutting questions at oral argument); Oral Argument Transcript 19–23, Tinker, 393 U.S. 503; and Johnson, Struggle for Student Rights, 161. The oral argument in Tinker can be heard on the Oyez website.

31.  Newman, Hugo Black, 591. Justice Black did not send the letter to his daughter-in-law indicating that he was sorry to learn the news of his grandson’s suspension until December 13, 1968, more than one month after oral argument in Tinker. Ibid., 592, 707n4. The leading biography of Justice Black—written by Roger Newman—notes that his grandson was suspended from school “[a]fter” oral argument in Tinker but does not reveal precisely when the suspension occurred or when Black learned of it. Ibid., 592. In the unlikely situation that both of these events occurred in the tiny interval between oral argument and the Court’s Conference on Tinker, Newman would have been incentivized to have revealed this fact, because it would have bolstered his suggestion that the suspension loomed large in Black’s mind as he drafted his dissent. See ibid., 593 (“Whether or not he was trying to chasten [his son] for [contemplating a lawsuit], Black wrote his [Tinker dissent] with [his son’s] children directly in mind”). Newman enjoyed extensive access to the parents of Black’s suspended grandson—interviewing both the mother and the father, even quoting from the latter’s diary about interactions with the justice.

32.  Laura Kalman, Abe Fortas: A Biography 287 (1990).

33.  Ibid.

34.  “Man and Woman of the Year: The Middle Americans,” Time, Jan. 5, 1970, 10. For a useful overview of Tinker’s historical backdrop, see Allen Rostron, “Intellectual Seriousness and the First Amendment’s Protection of Free Speech for Students,” 81 UMKC Law Review 635, 638 (2013). For insightful examinations of President Nixon’s 1968 campaign and its legal implications, see Kevin J. McMahon, Nixon’s Court: His Challenge to Judicial Liberalism and Its Political Consequences 17–36 (2011); Michael J. Graetz and Linda Greenhouse, The Burger Court and the Rise of the Judicial Right (2016); and Rick Perlstein, Nixonland: The Rise of a President and the Fracturing of America (2008). For penetrating analysis of this Time issue and its implications for schooling debates, see James E. Ryan, Five Miles Away, a World Apart: One City, Two Schools, and the Story of Educational Opportunity in Modern America 63–64 (2010).

35.  “Man and Woman of the Year: The Middle Americans,” 13. A different resident of Pittsfield, Massachusetts, stated, “I don’t think that [protesters] have the right to encroach upon the schools, the rules and regulations….There is a movement in this country to discredit our nation.” Ibid., 12.

36.  Tinker, 393 U.S. at 509n3.

37.  Daniel J. Boorstin, The Decline of Radicalism: Reflections on America Today 97 (1969). See ibid., xiv (“The old radicalisms were themselves rooted in a sense of sharing. But nowadays those who pass for ‘radicals’ are in fact desperate egolitarians. They lack the sense of community and in them we witness the decline of radicalism.”).

38.  The precise question asked, “Do you feel that students have the right to make their protests or not?” Hazel Erskine, “The Polls: Freedom of Speech,” 34 Public Opinion Quarterly 483, 493 (1970).

39.  A Decade of Gallup Polls of Attitudes Toward Education, 1969–1978 20 (Stanley M. Elam ed., 1978) (“[T]he biggest problem at the present time for the schools is the matter of discipline. This is the greatest criticism the public makes of the schools and the school officials.”).

40.  Seplow, “Dispute over High School Chant of ‘Beat Viet Cong,’ ” 1. For insight into how citizens’ attitudes toward the Vietnam War shifted between 1965 and 1969, and how the U.S. military’s depth of engagement in Vietnam materially shifted during that time, see Scott A. Moss, “The Story of Tinker v. Des Moines to Morse v. Frederick: Similar Stories of Different Student Speech with Different Results,” in First Amendment Stories 402–5 (Richard W. Garnett and Andrew Koppelman eds., 2012). See Joseph Carroll, “The Iraq-Vietnam Comparison,” Gallup News, June 15, 2004, in The Gallup Poll: Public Opinion 2004 240–42 (Alec M. Gallup and Frank Newport eds., 2006) (observing that, in December 1965, 56 percent of respondents supported President Johnson’s handling of the Vietnam War and only 26 percent of respondents did not support his handling of the war).

41.  Seplow, “Dispute over High School Chant of ‘Beat Viet Cong,’ ” 1.

42.  Janson, “Des Moines Stirs Liberties Protest,” 3.

43.  Magarrell, “Extend Ban on Arm Bands,” 1.

44.  Johnson, “Behind the Scenes in Iowa’s Great Case,” 477.

45.  Johnson, Struggle for Student Rights, 57–58.

46.  Raskin, “No Enclaves of Totalitarianism,” 1198.

47.  Brief for Respondent, Tinker, 393 U.S. 503, 1968 WL 112603, at *6.

48.  Ibid., *7; ibid., Appendix, 22–23; Tinker, 393 U.S. at 510.

49.  Harry Kalven Jr., The Negro and the First Amendment 140 (1965).

50.  See Brown v. Louisiana, 383 U.S. 131, 131n1 (1966).

51.  See, for example, Richard L. Berkman, “Students in Court: Free Speech and the Functions of Schooling in America,” 40 Harvard Education Review 567, 591 (1970) (contending Tinker presented an “invitation to the courts to apply…the ‘Heckler’s Veto,’ ” which it described as “involv[ing] a speaker whose words, while not inciting to the impartial observer, irritates to the point of violence an especially sensitive or already hostile crowd”).

52.  Burnside v. Byars, 363 F.2d 744, 746–47 (5th Cir. 1966).

53.  For a captivating excavation and analysis of Burnside and Blackwell, see generally Kristi L. Bowman, “The Civil Rights Roots of Tinker’s Disruption Tests,” 58 American University Law Review 1129 (2009). For first-rate historical treatments of the murders in Philadelphia, Mississippi, and assessments of the larger quest for racial equality within that state, see John Dittmer, Local People: The Struggle for Civil Rights in Mississippi 242–71 (1994); and Charles M. Payne, I’ve Got the Light of Freedom: The Organizing Tradition and the Mississippi Freedom Struggle (1995).

54.  Burnside, 363 F.2d at 747n4 (emphasis added).

55.  Ibid., 748.

56.  Blackwell v. Issaquena County Board of Education, 363 F.2d 749, 754 (5th Cir. 1966).

57.  Ibid., 753.

58.  My interpretation of Burnside as endorsing an actual disruption test may depart somewhat from Professor Bowman’s analysis. At one point, Bowman seems to contend that Burnside required the actual disruption to occur because of the speakers, rather than the audience. As Bowman argues, “[I]t was the presence of disruptive conduct by the speakers themselves in Blackwell but not Burnside that led the Fifth Circuit to different conclusions in these two cases—not the message itself or the responsive speech or conduct of others.” Bowman, “Civil Rights Roots,” 1145. Admittedly, portions of Blackwell sound as though the opinion hinges on the fact that the students wearing the buttons created the commotion. See Blackwell, 363 F.2d at 752–54. But Burnside itself—by acknowledging the possibility that “the presence of ‘freedom buttons’ ” could create a sufficient disruption to enable the principal to ban them—seems more accurately viewed as entertaining the notion that hostile audience reactions, not only boisterous speakers, may allow schools to eliminate student speech. Burnside, 363 F.2d at 748 (emphasis added).

59.  Critiquing Blackwell, Professor Charles Alan Wright “wonder[ed]…why the school did not discipline the small number of button-wearers who created noise and disturbance rather than striking at the wearing of buttons itself.” Charles Alan Wright, “The Constitution on Campus,” 22 Vanderbilt Law Review 1027, 1053 (1969). See also Ferrell v. Dallas Independent School District, 392 F.2d 697, 705n1 (5th Cir. 1968) (Tuttle, J., dissenting).

60.  See Erwin Chemerinsky, “The Deconstitutionalization of Education,” 36 Loyola University Chicago Law Journal 111, 124 (2004) (calling Tinker “the high watermark of the Supreme Court protecting the constitutional rights of students”); and James E. Ryan, “The Supreme Court and Public Schools,” 86 Virginia Law Review 1335, 1348 (2000) (noting that Tinker is “conventionally thought to represent the high-water mark of judicial protection of student speech”).

61.  For helpful background on Fraser, including a copy of his contested speech, see Bethel School District v. Fraser, 478 U.S. 675, 677–80 (1986); Brief for Respondent, Fraser, 478 U.S. 675, 1986 WL 720451, at *1–*5; Brief for Petitioner, Fraser, 478 U.S. 675, 1985 WL 667975, at *2–*6; Fraser v. Bethel School District No. 403, 755 F.2d 1356, 1357 (9th Cir. 1985); Ruth Marcus, “Student Suspended After Speech,” Washington Post, March 2, 1986, A12; and many additional newspaper articles cited below.

62.  Ronald W. Powell and Eric Pryne, “Supreme Court Hears High-School Speech Issue,” Seattle Times, March 3, 1986, A3; Philip Hager, “School Challenges Ruling Upsetting Suspension over Sexual Remarks,” Los Angeles Times, March 2, 1986, A4; and Edward Iwata, “UC Student’s Free Speech Suit Going Before U.S. High Court,” San Francisco Chronicle, Nov. 30, 1985, 4.

63.  Matthew Neil Fraser, “Squelching Student Speech,” Seattle Times, July 19, 1986, A15.

64.  Hager, “School Challenges Ruling Upsetting Suspension over Sexual Remarks,” A4.

65.  In addition to its First Amendment analysis, the district court overturned the school’s effort to bar Fraser from speaking at graduation under the Fourteenth Amendment’s Due Process Clause because the school’s disruptive conduct policy did not mention that penalty as a potential sanction. Both a federal appellate court and the U.S. Supreme Court determined that the question of removing Fraser’s name from the ballot was moot because he had already delivered the speech. See Fraser, 755 F.2d at 1366; and Fraser, 478 U.S. at 686n*.

66.  Fraser, 478 U.S. at 683–84.

67.  Ibid., 683.

68.  Ibid., 681 (internal quotation marks and citations omitted). For Fraser’s explicit citation to Justice Black’s dissent in Tinker, see ibid., 686.

69.  Ibid., 681.

70.  Ibid., 683. See also ibid. (“Consciously or otherwise, teachers…demonstrate the appropriate form of civil discourse and political expression by their conduct and deportment in and out of class. Inescapably, like parents, they are role models.”) In Fraser, Justice William Brennan wrote a brief opinion. Brennan disputed the Court’s characterization of Fraser’s speech, which he found “no more ‘obscene,’ ‘lewd,’ or ‘sexually explicit’ than the bulk of programs currently appearing on prime time television or in the local cinema.” Ibid., 689n2 (Brennan, J., concurring in the judgment). Nevertheless, Brennan reasoned, “[I]t was not unconstitutional for school officials to conclude, under the circumstances of this case, that respondent’s remarks exceeded permissible limits.” Ibid., 687–88 (emphasis added). Had Fraser delivered the address not at a school assembly but instead, say, to his seatmates in the cafeteria, Brennan intimated that in his view the speech might have been constitutionally protected.

71.  Ibid., 685–86.

72.  Ibid., 692 (Stevens, J. dissenting). See also “Students and Speech,” Washington Post, July 9, 1986, A24 (“Chief Justice Burger referred to him as a ‘troubled boy,’ while Justice Stevens called him ‘an outstanding young man’ ”).

73.  Fraser, 478 U.S. at 694–95 (Stevens, J. dissenting).

74.  Ibid., 690 (Marshall, J., dissenting).

75.  “Students and Speech,” A24. For an even more exaggerated version of this view, see Raymond Coffey, “A Smart-Aleck Kid Gets His Due—Hooray!,” Chicago Tribune, July 11, 1986, 16 (“At least one smart-aleck kid got put in his place this week, for which we can all give praise”).

76.  “Setting an Example; Speech in School,” New York Times, July 15, 1986, A28.

77.  “Students and Speech,” A24 (noting Fraser would not have been punished for speech “essentially political in character”); “Setting an Example; Speech in School,” A28 (“[I]n political debate, the most robust exchanges should be encouraged”).

78.  “A Little Lesson in the Limits of Law,” Chicago Tribune, July 10, 1986, 18.

79.  Diana Trilling, letter to the editor, New York Times, Aug. 12, 1986, A24.

80.  Alan Dershowitz, “Free Speech at Bethel High,” Seattle Times, March 21, 1986, A9.

81.  See, for example, Nat Stern, “The Burger Court and the Diminishing Constitutional Rights of Minors: A Brief Overview,” 1985 Arizona State Law Journal 865, 900. For a contrary view, see Anne Proffitt Dupre, Speaking Up: The Unintended Costs of Free Speech in Public Schools 10 (2009); and Anne Proffitt Dupre, “Should Students Have Constitutional Rights? Keeping Order in the Public Schools,” 65 George Washington Law Review 49, 98–99 (1996).

82.  Jack Broom, “Spanaway School Wins Speech Case,” Seattle Times, July 7, 1986, A1. See also Iwata, “UC Student’s Free Speech Suit Going Before U.S. High Court,” 4 (“At UC Berkeley, he and his debate partner have led their powerful team to a No. 2 national ranking”).

83.  Fred M. Hechinger, “About Education; Political Shift on ‘Vulgar’ Speech,” New York Times, July 15, 1986, C1.

84.  Ronald Reagan, “Remarks at the National Forum on Excellence in Education,” Public Papers of President Ronald W. Reagan, Dec. 8, 1983.

85.  See Dupre, Speaking Up, 50–51 (identifying the connection between the solicitor general’s quotation of the U.S. history textbook and Burger’s opinion in Fraser). The textbook in question was Charles Beard and Mary Beard, New Basic History of the United States 228 (rev. ed. 1968). It is ironic that the work of Charles Beard would be cited in a Supreme Court decision interpreting the Constitution, because his most prominent scholarly work, An Economic Interpretation of the Constitution of the United States (1913), criticized the document as being designed to protect the interests of its elite framers. For a recent work that builds upon and refines Beard’s analysis, see Michael J. Klarman, The Framers’ Coup: The Making of the United States Constitution (2016).

86.  “Supreme Court Roundup; Court Backs School on Student’s ‘Vulgar’ Speech,” New York Times, July 8, 1986, A18. Gary Bauer, undersecretary of the Department of Education, contended, “We think [Fraser] is very positive. It is a reaffirmation of the role of education in transmitting values and the need for an atmosphere in the schools that is conducive to learning.” Rita Ciolli, “Ruling Limits Student Speech Right,” Newsday, July 8, 1986, 5.

87.  Wendell L. Willkie, “A School Must Have Moral Authority,” Washington Post, Sept. 13, 1986, A21.

88.  For earlier articulation of some of these criticisms, see, for example, Mark G. Yudof, “Tinker Tailored: Good Faith, Civility, and Student Expression,” 69 St. John’s Law Review 365, 372–73 (1995) (“The holding in Fraser is difficult to understand when viewed in light of Tinker. If a nominating speech for political office is not political speech, then what constitutes political speech?”).

89.  Ryan, “Supreme Court and Public Schools,” 1355, 1356.

90.  Morse v. Frederick, 551 U.S. 393, 404 (2007).

91.  My formulation touting “more speech” pays homage to Justice Brandeis’s famous articulation of free speech in Whitney v. California. See Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J., dissenting) (“If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the process of education, the remedy to be applied is more speech, not enforced silence”).

92.  See Hechinger, “Political Shift on ‘Vulgar’ Speech,” C8 (“The Chief Justice may have been motivated by old-fashioned chivalry; but in the contemporary context, he has a sexist ring. Should high-school girls be sent out of the room when Shakespeare’s ‘lewd’ ways of dealing with male sexuality and his frequent sexual metaphors and innuendo appear in literature classes?”).

93.  See “Court Backs School on Student’s ‘Vulgar’ Speech,” A18 (noting that Fraser stated Kuhlman was “ ‘a man who takes his point and pounds it in’ ” and was “ ‘a man who will go to the very end—even to the climax, for each and every one of you’ ”); Marcus, “Student Suspended After Speech,” A12; Iwata, “UC Student’s Free Speech Suit Going Before U.S. High Court,” 4; and Powell and Pryne, “Supreme Court Hears High-School Speech Issue,” A3 (reprinting the speech in full and noting publication of Fraser’s speech by Bethel’s school newspaper).

94.  Brief for Respondent at *4, Fraser, 1986 WL 720451.

95.  James Madison, “Report on the Virginia Resolutions, Jan. 1800,” in 5 The Founders’ Constitution 141, 143 (Philip Kurland and Ralph Lerner eds., 2000).

96.  For extremely helpful background on Hazelwood School District v. Kuhlmeier that informs my analysis throughout, see Anne Proffitt Dupre, “The Story of Hazelwood v. Kuhlmeier: Student Press and the School Censor,” in Education Law Stories 221–58 (Michael A. Olivas and Ronna Greff Schneider eds., 2008); Steve Visser, “A Civics Lesson at Hazelwood East,” Nation, Oct. 24, 1987, 441–42; Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 262–66 (1988); Brief for Petitioners, Kuhlmeier, 484 U.S. 260, 1987 WL 864172, at *3–*11; Brief for Respondents, Kuhlmeier, 484 U.S. 260, 1987 WL 864173, at *1–*3; Derek W. Black, Education Law: Equality, Fairness, and Reform 669–71 (2013) (reproducing Spectrum’s two controverted articles); “Too Hot for Hazelwood,” St. Louis Globe-Democrat: Globe Weekend, Feb. 9, 1985, 5–11 (reprinting all of the deleted articles).

97.  Mark Walsh, “Landmark Student-Press Ruling Resonates from 1988,” Education Week, Jan. 9, 2013, 1.

98.  Michael D. Sorkin and Tom Uhlenbrock, “Educators Elated; Not So Students,” St. Louis Post-Dispatch, Jan. 14, 1988, A1; Brief for Respondents at *3, Kuhlmeier, 1987 WL 864173 (noting divorce story contained a quotation from Kuhlmeier).

99.  Kuhlmeier, 484 U.S. at 271.

100.   Ibid., 273.

101.   Ibid., 274–75.

102.   Ibid., 277 (Brennan, J., dissenting).

103.   Ibid., 289–90.

104.   Ibid., 290.

105.   Ibid., 291.

106.   Joseph R. Tybor, “1st Amendment Rights End at Door to School,” Chicago Tribune, Jan. 17, 1988, 1.

107.   Theodore R. Mitchell, “The High Court and Hazelwood: Chipping Away at Rights,” Christian Science Monitor, Jan. 25, 1988. For additional commentators criticizing Kuhlmeier, see, for example, Fred M. Hechinger, “Students as Journalists,” New York Times, March 3, 1987, C6; Nat Hentoff, “Student Free Speech Is in Trouble,” Washington Post, Aug. 30, 1986, A23; and Clarence Page, “Press Freedom Isn’t Always Free,” Chicago Tribune, Jan. 17, 1988, C3.

108.   “Censorship as a Lesson,” Los Angeles Times, Jan. 16, 1988, A8. For other editorials criticizing Kuhlmeier, see, for example, “What Hath Hazelwood Wrought?,” St. Louis Post-Dispatch, March 4, 1988, F2; and “First Amendment Lessons,” New York Times, Jan. 15, 1988, A30.

109.   Stuart Taylor Jr., “Court, 5–3 Widens Power of Schools to Act as Censors,” New York Times, Jan. 14, 1988, C1 (contending that Kuhlmeier “continued a recent trend in which the Court has taken a narrower view of the constitutional rights of public school students than that suggested by its earlier rulings”); and Al Kamen, “Schools’ Power to Censor Student Publications Widened,” Washington Post, Jan. 14, 1988, A1 (noting decision redefined Tinker).

110.   David G. Savage, “Justices OK Censorship by Schools,” Los Angeles Times, Jan. 14, 1988, B1.

111.   Bari Sue Kenyon, “Drawing the Line on Student Rights,” New York Times, Feb. 21, 1988, 18.

112.   Kim Jenkins, “First Amendment: Is It Just for Adults?,” New York Times, Jan. 31, 1988, A26. An article in Time on Kuhlmeier made this same point: “The Bill of Rights isn’t stamped ‘for adults only.’ ” Richard Lacayo, “Stop the Student Presses,” Time, Jan. 25, 1988, 54.

113.   “Vindication, Fearfulness on Decision,” New York Times, Jan. 14, 1988, A26.

114.   George Landau, “Key Players Discuss Hazelwood Court Case,” St. Louis Post-Dispatch, Feb. 22, 1988, A4.

115.   Savage, “Justices OK Censorship by Schools,” B1. See ibid. (noting that education officials and counsel for Los Angeles Unified School District contended Kuhlmeier ratified the status quo); and Kamen, “Schools’ Power to Censor Student Publications Widened,” A1 (observing that counsel for the National School Boards Association noted most school officials felt they exercised wide authority over school newspapers before Kuhlmeier).

116.   James J. Kilpatrick, “Just Like Letting Animals Run the Zoo,” Orlando Sentinel, Feb. 12, 1987, A19.

117.   Judy Mann, “Principal as Publisher,” Washington Post, Jan. 15, 1988, C3. For one of the few newspaper editorial pages that agreed with the Court’s outcome in Kuhlmeier, see “Journalism School,” Orange County Register, Jan. 14, 1988, B10 (contending that Principal Reynolds’s actions demonstrated “[p]oor judgment, perhaps, but that is not an unconstitutional sin”).

118.   Black, Education Law, 670.

119.   Ibid., 671. Some of the critiques contained in this paragraph were also advanced by Justice Brennan’s dissenting opinion in Kuhlmeier. See Kuhlmeier, 484 U.S. at 277 (Brennan, J., dissenting).

120.   Mark G. Yudof, “Principal as Publisher, Not Censor,” Wall Street Journal, Jan. 20, 1988, 28. Professor Yudof offers another evocative example of the potential absurdities that could flow from permitting Kuhlmeier to prevail: “[C]onsider that President Reagan may be [censoring] his speech writers.” Ibid. For an inchoate articulation of government speech, see Wooley v. Maynard, 430 U.S. 705, 713–17 (1977). For the formal debut of the government speech doctrine, see Rust v. Sullivan, 500 U.S. 173, 199–200 (1991). For a recent, controversial application of government speech, see Walker v. Sons of Confederate Veterans, 135 S. Ct. 2239 (2015). See also Mark G. Yudof, When Government Speaks: Politics, Law, and Government Expression in America (1983); and Yudof, “Tinker Tailored,” 374.

121.   Frederick, 551 U.S. at 423 (Alito, J., dissenting).

122.   See, for example, Near v. Minnesota, 283 U.S. 697 (1931); and New York Times Co. v. United States, 403 U.S. 713 (1971).

123.   See “Too Hot for Hazelwood,” 5–11; Ross, Lessons in Censorship, 108 (detailing Chicago Tribune’s publication of a story that originated at Naperville North High School).

124.   For a helpful overview of state legislation that has offered greater protection to student journalists than that provided by the Supreme Court, see Tyler J. Buller, “The State Response to Hazelwood v. Kuhlmeier,” 66 Maine Law Review 89 (2013). For a recent article highlighting the importance that these measures can have on the ground, see Christopher Mele, “High School Journalists Land a Scoop, and the Principal Resigns,” New York Times, April 5, 2017. These measures are sometimes designated “anti-Hazelwood statutes.” For claims that lower court judges have severely and detrimentally expanded upon Kuhlmeier, see Ross, Lessons in Censorship, 96–125; and Emily Gold Waldman, “Returning to Hazelwood’s Core: A New Approach to Restrictions on School-Sponsored Speech,” 60 Florida Law Review 63 (2008). For thoughtful analysis of Kuhlmeier, see Susannah Barton Tobin, “Divining Hazelwood: The Need for a Viewpoint Neutrality Requirement in School Speech Cases,” 39 Harvard Civil Rights–Civil Liberties Law Review 217 (2004).

125.   Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 287 (1988) (Brennan, J., dissenting) (internal quotation marks and citations omitted, alterations in original).

126.   For background on Pico and book banning generally, see Board of Education, Island Trees Union Free School District No. 26 v. Pico, 457 U.S. 853, 856–61, 872n24 (1982) (Brennan, J., plurality opinion); Gail Paulus Sorenson, “Removal of Books from School Libraries, 1972–1982: Board of Education v. Pico and Its Antecedents,” 12 Journal of Law and Education 417 (1983); Mark Yudof, “Book Selection and the Public Schools,” 59 Indiana Law Journal 527 (1984); Charles R. Babcock, “Book Banning Spreads: But a Court Test Could Stem the Tide,” Washington Post, May 10, 1982, A1; Joseph Nocera, “The Big Book-Banning Brawl,” New Republic, Sept. 13, 1982, 20; “The Growing Battle of the Books,” Time, Jan. 19, 1981, 85; Dena Kleiman, “Parents’ Groups Purging Schools of ‘Humanist’ Books and Classes,” New York Times, May, 17 1981, A1; and Linda Greenhouse, “High Court Limits Banning of Books,” New York Times, June 26, 1982, 1. For a cogent philosophical treatment of book banning, see Amy Gutmann, Democratic Education 97–101 (1987).

127.   Stephen Arons, Compelling Belief: The Culture of American Schooling 63 (1983).

128.   “L.I. Students File Suit to Overturn School Book Ban,” New York Times, Jan. 5, 1977, 23. For accounts of Steven Pico’s assessment of his fellow Levittowners, see Colin Campbell, “Book Banning in America,” New York Times, Dec. 20, 1981, BR1; and Kay Bartlett, “Book-Banning Row Splits N.Y. Community,” Los Angeles Times, Feb. 20, 1977, 2.

129.   “L.I. Students File Suit to Overturn School Book Ban,” 23. For remarks upon Levittown’s homogeneity in the context of Pico, see “The Book Banning Controversy,” Wall Street Journal, Jan. 18, 1982, 22; and Bartlett, “Book-Banning Row Splits N.Y. Community,” 2. For an overview of Levittown and its history, see Herbert J. Gans, The Levittowners: Ways of Life and Politics in a New Suburban Community (1967). See also Carol Kopf, “Living in Levittown,” Newsday, May 3, 1986, 5. The reason for my note of skepticism on whether Levittown’s homogeneity actually played a causal role in generating the book-banning plan stems primarily from the fact that such practices were found in many different types of communities across the country. It is also important to realize that, while the plan originated with Levittown’s school board, some Levittowners also disdained the proposal.

130.   Pico, 457 U.S. at 872 (Brennan, J., plurality opinion) (citation omitted). See also ibid., 875 (Blackmun, J., concurring in part and concurring in the judgment); and ibid., 883 (White, J., concurring in the judgment). Three justices wrote dissenting opinions in Pico. Justice Lewis Powell wrote perhaps the most noteworthy among them, because he emphasized the importance of local control: “School boards are uniquely local and democratic institutions….Judges rarely are as competent as school authorities to make this decision; nor are judges responsive to the parents and people of the school district.” Ibid., 894 (Powell, J., dissenting). For a bold argument building on Pico to suggest that school textbooks be scrutinized as sources of patriotic indoctrination, see Stephen E. Gottlieb, “In the Name of Patriotism: The Constitutionality of ‘Bending’ History in Public Secondary School,” 62 NYU Law Review 497 (1987).

131.   For useful sources that provide the background of Morse v. Frederick, see Morse v. Frederick, 551 U.S. 393, 396–99 (2007); Brief for Respondent’s Brief at *1–*4, Frederick, 551 U.S. 393, 2007 WL 579230; Brief for Petitioner at *2–*7, Frederick, 551 U.S. 393, 2007 WL 118979; Moss, “Story of Tinker v. Des Moines to Morse v. Frederick,” 416–21; Mark Walsh, “Rights at Stake in Free-Speech Case,” Education Week, March 9, 2007, 1, 28–29; Robert Barnes, “Justices to Hear Landmark Free-Speech Case,” Washington Post, March 13, 2007, A3; Linda Greenhouse, “Free-Speech Case Divides Bush and Religious Right,” New York Times, March 18, 2007, A22; and Andrew Krueger, “Banner Canned,” Juneau Empire, Jan. 29, 2002. Frederick also commented about the banner, “I wasn’t trying to spread any idea. I was just trying to assert my [First Amendment] right.” Deposition of Joseph Frederick, Aug. 21, 2002, Joint Appendix at *68, Morse v. Frederick, 2007 WL 119039 (U.S.).

132.   Frederick, 551 U.S. at 397.

133.   Ibid., 407.

134.   Ibid., 421 (Thomas, J., concurring).

135.   Ibid., 411–12.

136.   Ibid., 421.

137.   Ibid., 445n8, 448 (Stevens, J., dissenting).

138.   Ibid., 448.

139.   Ibid., 447–48.

140.   “Three Bad Rulings,” New York Times, June 26, 2007, A20. The Los Angeles Times shared this assessment; it contended Frederick “drained the life out of” Tinker. “Student Speech: No,” Los Angeles Times, June 26, 2007, A22. For pre-decision commentary that advocated the Court adopting a strong First Amendment line in Frederick, see “Students’ Right to Free Speech,” New York Times, March 20, 2007, A18 (“The court should…rule that Mr. Frederick’s rights were infringed”); ibid. (“[I]f schools can limit speech on any subject deemed to be important, students could soon be punished for talking about the war on terror or the war in Iraq because the government also considers those subjects important”); and “Precedent 4 Student Speech,” Washington Post, March 21, 2007, A14 (“What is a bong hit 4 Jesus? We’re not sure, and we doubt anyone really knows what the phrase means—which is one reason the Supreme Court ought not to regard it as prohibited speech.”).

141.   “A Less-than-Banner Ruling,” Washington Post, June 27, 2007, A18.

142.   Frederick Schauer, “Abandoning the Guidance Function: Morse v. Frederick,” 2007 Supreme Court Review 205, 209–11. Professor Schauer may well believe that the Court in Frederick was justified in articulating a free speech rule that applied within only that institutional setting. For thinking along these lines, see Frederick Schauer, “Towards an Institutional First Amendment,” 89 Minnesota Law Review 1256 (2005). For an insightful, nuanced position on the First Amendment obligations of public schools as one variety of public institution, see Paul Horwitz, First Amendment Institutions 144–73 (2012). See also Ronald Dworkin, The Supreme Court Phalanx: The Court’s New Right-Wing Bloc 63 (2008) (“It is hard to resist the suspicion that, for Roberts, anti-abortion groups have constitutional rights that students who joke about drugs and Jesus do not”); Martha C. Nussbaum, “The Supreme Court, 2006 Term—Foreword: Constitutions and Capabilities: ‘Perception’ Against Lofty Formalism,” 121 Harvard Law Review 4, 93n419 (2007) (suggesting that both Fraser and Frederick “show a certain failure of imagination, in the sense that someone who lives (sympathetically) around adolescents or can imagine what it is like to be one would probably not be as shocked by the utterances in question as some of the Justices appear to be”); and Laurence Tribe and Joshua Matz, Uncertain Justice: The Roberts Court and the Constitution 137 (2014) (noting that Frederick “had all the makings of a one-off case—and yet it…dramatically limited student speech rights”).

143.   David French, “A Bong Hit to Free Speech,” National Review, June 25, 2007. See also Ed Whelan, “A Small Step to the Right…and to the Center,” National Review Online, July 3, 2007 (noting in Frederick’s wake that “many conservative public-interest groups have been at the forefront of defending disfavored student speech—which is hardly surprising given who runs the public schools”).

144.   Hans Bader, “Bong Hits 4 Jesus: The First Amendment Takes a Hit,” 2007 Cato Supreme Court Review 133, 133.

145.   Kenneth W. Starr, “From Fraser to Frederick: Bong Hits and the Decline of Civic Culture,” 42 UC Davis Law Review 661, 676–77 (2009). For Starr’s more expansive proposed legal rule governing student speech, see Brief for Petitioners, Frederick, 551 U.S. 393, 2007 WL 118979, at *21. The Solicitor General’s Office advanced this same proposed rule. See Brief for United States as Amicus Curiae, Frederick, 551 U.S. 393, 2007 WL 118978, at *6. See also Kenneth W. Starr, “Our Libertarian Court: Bong Hits and the Enduring Hamiltonian-Jeffersonian Colloquy,” 12 Lewis and Clark Law Review 1 (2008).

146.   Robert Bork, “ ‘Thanks a Lot’: Free Speech in High Schools,” National Review, April 16, 2007, 24. For a similar view to Bork’s, see George F. Will, “Quandaries 4 Justices,” Washington Post, July 1, 2007, B7 (“Endless distinctions can—and actually, must—be drawn once a subject becomes a matter of constitutional litigation”).

147.   Some of the criticisms contained in this paragraph can also be found in Justice Breyer’s opinion in Frederick. See Frederick, 551 U.S. at 425 (Breyer, J., concurring in the judgment in part and dissenting in part).

148.   Lawrence M. Friedman, “Limited Monarchy: The Rise and Fall of Student Rights,” in School Days, Rule Days: The Legalization and Regulation of Education 238, 251 (David L. Kirp and Donald N. Jensen eds., 1986) (emphasis added). See also Scoville v. Board of Education of Joliet Township High School, 425 F.2d 10, 15 (7th Cir. 1970); and Edward A. Wynne, “What Are the Courts Doing to Our Children?,” Public Interest 3, 7–8 (Spring 1981).

149.   Nuxoll v. Indian Prairie School District, 523 F.3d 668, 674 (7th Cir. 2008).

150.   Ibid. (emphasis added). For cases expanding Frederick to apply to violent speech, see Ponce v. Socorro Independent School District, 508 F.3d 765 (5th Cir. 2007); Boim v. Fulton County School District, 494 F.3d 978 (11th Cir. 2007); and B.C. v. Valley Central School District, 677 F.3d 109 (2d Cir. 2012). For an incisive article that quickly identified the lower courts’ expansion of Frederick, see Clay Calvert, “Misuse and Abuse of Morse v. Frederick by Lower Courts: Stretching the High Court’s Ruling Too Far to Censor Student Expression,” 32 Seattle University Law Review 1, 12–24 (2008). If Tinker offers an inadequate basis to address frightening, violent speech directed toward students and educators, it may be advisable for judges to view schools as enjoying a lower threshold for what constitutes a “true threat” compared with nonschool environments. If speech is viewed as constituting a “true threat,” it enjoys no protection under the First Amendment. See Watts v. United States, 394 U.S. 705 (1969).

151.   Karr v. Schmidt, 460 F.2d 609, 614 (5th Cir. 1972).

152.   Broussard v. School Board of the City of Norfolk, 801 F. Supp. 1526, 1534 (E.D. Va. 1992).

153.   Erwin Chemerinsky, “Students Do Leave Their First Amendment Rights at the Schoolhouse Gates: What’s Left of Tinker?,” 48 Drake Law Review 527, 529, 541 (2000).

154.   Perry A. Zirkel, “The Rocket’s Red Glare: The Largely Errant and Deflected Flight of Tinker,” 38 Journal of Law and Education 593, 597 (2009); and Piotr Banasiak, “Morse v. Frederick: Why Content-Based Exceptions, Deference, and Confusion Are Swallowing Tinker,” 39 Seton Hall Law Review 1059, 1099 (2009).

155.   J. Marc Abrams and S. Mark Goodman, “End of an Era? The Decline of Student Press Rights in the Wake of Hazelwood School District v. Kuhlmeier,” 1988 Duke Law Journal 706, 707; and Thomas J. Flygare, “Is Tinker Dead?,” 68 Phi Delta Kappan 165, 165 (1986). See ibid. (“The apparent demise of Tinker is especially poignant for many of us because Tinker marked the emergence of school law as a discipline.”)

156.   Paul G. Haskell, “Student Expression in the Public Schools: Tinker Distinguished,” 59 Georgetown Law Journal 37, 39 (1970).

157.   See Scott A. Moss, “The Overhyped Path from Tinker to Morse: How the Student Speech Cases Show the Limits of Supreme Court Decisions—for the Law and for the Litigants,” 63 Florida Law Review 1407 (2011).

158.   Barber v. Dearborn Public Schools, 286 F. Supp. 2d 847 (E.D. Mich. 2003) (“International Terrorist”); Gillman v. School Board for Holmes County, 567 F. Supp. 2d 1359 (N.D. Fla. 2008) (“Pro-Gay Marriage”); and Hawk v. Easton Area School District, 725 F.3d 293 (3d Cir. 2013) (“I ♥ boobies!”).

159.   Holloman v. Harland, 370 F.3d 1252, 1275–76 (11th Cir. 2004). Lower courts have frequently vindicated the desire of students to sit during the Pledge of Allegiance. See Banks v. Board of Public Instruction of Dade County, 314 F. Supp. 285 (S.D. Fla. 1970) (validating a student’s request to sit during the pledge as a “simple protest against black repression in the United States”); and Lipp v. Morris, 579 F.2d 834, 835 (3d Cir. 1978) (validating a student’s request to sit during the pledge because, in her estimation, “the words of the pledge were not true”).

160.   Fricke v. Lynch, 491 F. Supp. 381, 387 (D. R.I. 1980). Fricke informed Judge Pettine at a hearing in his case, “I feel I have a right to attend [the prom]. I feel I want to go for the same reason any other student would want to go. I’m fighting for my rights. It would be a statement for equal rights and human rights.” “Ban on Homosexual’s Prom Date Leads to Day in Court,” New York Times, May 21, 1980, B4. Elsewhere, Fricke stated, “I think it would be dishonest to my sexual identity to go with a girl.” Douglas S. Crocket, “Court to Hear Closing Testimony in Gay Prom Date Issue,” Boston Globe, May 21, 1980, 26. The logistics of a same-sex prom couple appeared to flummox the school district’s attorney, who asked Fricke during the hearing, “Would either you or [your date] wear a corsage?” Ibid.

161.   Doe v. Yunits, 2000 WL 33162199 (Mass. Super. Oct. 11, 2000). See ibid., *5 (“Defendants vaguely cite instances when the principal became aware of threats by students to beat up the ‘boy who dressed like a girl’ to support the notion that plaintiff’s dress alone is disruptive. To rule in defendants’ favor in this regard, however, would grant those contentious students a ‘heckler’s veto.’ ”) (citation omitted).

162.   Tamar Lewin, “High School Tells Student to Remove Antiwar Shirt,” New York Times, Feb. 26, 2003, A12 (reporting retreat on Palestinian flag); John Carlson, “Anti-abortion Message Meets Zero Tolerance,” Des Moines Register, May 4, 2005, A13; and Veronica Rocha, “High School Teams Can Wear ‘I Can’t Breathe’ T-Shirts After All,” Los Angeles Times, Dec. 30, 2014.

163.   See Madrid v. Anthony, 510 F. Supp. 2d. 425 (S.D. Tex. 2007); Dariano v. Morgan Hill Unified School District, 767 F.3d 764 (9th Cir. 2014); Harper v. Poway Unified School District, 445 F.3d 1166 (9th Cir. 2006); and Defoe v. Spiva, 625 F.3d 324 (6th Cir. 2010). Judge Reinhardt’s opinion for the Ninth Circuit in Harper elevated a dormant passage in Tinker to sidestep the traditional requirement that educators reasonably forecast a substantial disruption before limiting speech. “We conclude that Harper’s wearing of his T-shirt ‘colli[des] with the rights of other students’ in the most fundamental way.” Harper, 445 F.3d at 1178 (quoting Tinker, 393 U.S. at 508). The controlling opinion in Defoe upheld the Confederate flag prohibition—in the absence of anything that satisfied Tinker’s traditional test—by expanding the Court’s reasoning in Frederick to apply to student speech that can reasonably be understood as promoting racial division. “If we substitute ‘racial conflict’ or ‘racial hostility’ for ‘drug abuse,’ the analysis in [Frederick] is practically on all fours with this case,” Judge Rogers’s controlling opinion stated. “The inescapable conclusion is that a school may restrict racially hostile or contemptuous speech in school, when school administrators reasonably view the speech as racially hostile or promoting racial conflict.” Defoe, 625 F.3d at 339 (opinion of Rogers, J.). Although Judge Clay wrote an opinion trying to fit Defoe into Tinker’s framework, I agree with the other two judges on the panel that the evidence he cites is too attenuated to satisfy Tinker’s usual test.

164.   Judge Posner has advocated importing a version of the fighting-words doctrine into the school context. See Nuxoll, 523 F.3d at 670–71. The Court first recognized the fighting-words doctrine in Chaplinsky v. New Hampshire, 315 U.S. 568, 572–73 (1942). Although the Court in R.A.V. v. City of St. Paul invalidated a fighting-words statute that mentioned specific identity-based characteristics, schools can enact policies that localities as a whole cannot. See R.A.V. v. City of St. Paul, 505 U.S. 377, 386 (1992). For a recent statement indicating that the fighting-words doctrine retains vitality, see Elonis v. United States, 135 S. Ct. 2001, 2027–28 (2015) (Thomas, J., dissenting). For criticism of the fighting-words doctrine, see Randall Kennedy, Nigger: The Strange Career of a Troublesome Word 54–55 (2002).

165.   Boroff v. Van Wert City Board of Education, 220 F.3d 465, 469 (6th Cir. 2000).

166.   Ibid., 470. See also ibid., 474 (Gilman, J., dissenting).

167.   Blau v. Fort Thomas Public School District, 401 F.3d 381, 385–86 (6th Cir. 2005).

168.   “Armbands Yes, Miniskirts No,” 46.

169.   See Alison Mitchell, “Clinton Will Advise Schools on Uniforms,” New York Times, Feb. 25, 1996, 24. Left-leaning politicians are not the only progressive voices who have supported school uniforms. See Charles Lane, “School Uniforms—the Answer to Free Speech Issues at High Schools,” Washington Post, Sept. 24, 2015. For additional opinions upholding school dress codes, see Palmer v. Waxahachie Independent School District, 579 F.3d 502 (5th Cir. 2009); and Jacobs v. Clark County School District, 526 F.3d 419 (9th Cir. 2008).

170.   Doninger v. Niehoff, 642 F.3d 334, 351 (2d Cir. 2011).

171.   J.S. v. Blue Mountain, 650 F.3d 915, 921 (3d Cir. 2011).

172.   Ibid., 920.

173.   Ibid., 930.

174.   Layshock v. Hermitage School District, 650 F.3d 205, 216 (3d Cir. 2011).

175.   Edward Wyatt, “It Turns Out You Can Say That on Television, Over and Over,” New York Times, Nov. 14, 2009, A1 (chronicling the increased use of “douche” on network television in recent years). For evidence suggesting that the federal court viewed the school’s decision to prohibit Doninger from running for senior class secretary as a light punishment, see Doninger, 642 F.3d at 350 (“Doninger’s discipline extended only to her role as a student government representative: she was not suspended from classes or punished in any other way”) (emphasis added).

176.   My thinking about the question of off-campus speech that criticizes other students was influenced by the following sources: Emily Bazelon, Sticks and Stones: Defeating the Culture of Bullying and Rediscovering the Power of Character and Empathy 271–79 (2014); Mary-Rose Papandrea, “Student Speech Rights in the Digital Age,” 60 Florida Law Review 1027, 1102 (2008); and Ross, Lessons in Censorship, 207–44. See also Nirvi Shaw, Inside School Research, “Researchers: Cyberbullying Not as Widespread, Common as Believed,” Education Week, Aug. 4, 2012; and Danielle Keats Citron, Hate Crimes in Cyberspace 248–50 (2014). For some of the opinions that broadly permit students to be punished for speech uttered off campus that is critical of students, see Kowalski v. Berkeley County Schools, 652 F.3d 565 (4th Cir. 2011); and D.J.M. v. Hannibal Public School District, 647 F.3d 754 (8th Cir. 2011).

177.   Nuxoll, 523 F.3d at 671.

178.   Ibid., 677–78 (Rovner, J., concurring in the judgment) (internal citations omitted).

3 SUSPENSIONS, CORPORAL PUNISHMENT, AND INTOLERABLE “ZERO TOLERANCE” POLICIES

1.  See, for example, Kerrin C. Wolf and Aaron Kupchik, “School Suspensions and Adverse Experiences in Adulthood,” 34 Justice Quarterly 407 (2017); Tony Fabelo et al., Breaking Schools’ Rules: A Statewide Study of How School Discipline Relates to Students’ Success and Juvenile Justice Involvement, Council of State Governments Justice Center and Public Policy Research Institute (2011); Russell J. Skiba et al., “More than a Metaphor: The Contribution of Exclusionary Discipline to a School-to-Prison Pipeline,” 47 Equity and Excellence in Education 546 (2014); and Bruce Western, Punishment and Inequality in America (2006).

2.  Frank R. Kemerer and Kenneth L. Deutsch, Constitutional Rights and Student Life: Value Conflict in Law and Education 463 (1979).

3.  For helpful background on the underlying facts of Goss v. Lopez, see ibid., 409–99; Franklin E. Zimring and Rayman L. Solomon, “Goss v. Lopez: The Principle of the Thing,” in In the Interest of Children: Advocacy, Law Reform, and Public Policy 450–508 (Robert H. Mnookin ed., 1985); “Racial Strife Hits Schools,” Columbus Evening Dispatch, Feb. 20, 1971, 1; and Graydon Hambrick, “Central High Suspensions Follow Row,” Columbus Evening Dispatch, Feb. 27, 1971, 1.

4.  Warren A. Seavey, “Dismissal of Students: ‘Due Process,’ ” 70 Harvard Law Review 1406, 1407 (1957).

5.  Dixon v. Alabama State Board of Education, 294 F.2d 150, 158 (5th Cir. 1961).

6.  See Mark G. Yudof, “Legalization of Dispute Resolution, Distrust of Authority, and Organizational Theory: Implementing Due Process for Students in the Public Schools,” 1981 Wisconsin Law Review 891, 900–901; and William G. Buss, “Procedural Due Process for School Discipline: Probing the Constitutional Outline,” 119 University of Pennsylvania Law Review 545, 552–53 (1971).

7.  Charles Alan Wright, “The Constitution on Campus,” 22 Vanderbilt Law Review 1027, 1032 (1969).

8.  Fourteenth Amendment, U.S. Constitution. The Supreme Court’s foundational due process precedents relied upon in Lopez include Goldberg v. Kelly, 397 U.S. 254 (1970) (requiring hearings to be conducted before the state could deprive individuals of their property interest in welfare benefits); and Wisconsin v. Constantineau, 400 U.S. 433 (1971) (requiring evidentiary hearings to be conducted before the state could deprive individuals of their liberty interest in reputation).

9.  Goss v. Lopez, 419 U.S. 565, 581 (1975).

10.  Ibid., 584. See also ibid., 580n9.

11.  Ibid., 581, 583.

12.  See J. Harvie Wilkinson III, “Goss v. Lopez: The Supreme Court as School Superintendent,” 1975 Supreme Court Review 25, 45–46 (speculating that Powell’s experiences on the Richmond School Board and Virginia State Board of Education influenced his dissent in Lopez). For an insightful biography of Powell, one that addresses the close relationships connecting the Powells and the Wilkinsons, see John C. Jeffries, Justice Lewis F. Powell Jr.: A Biography (1994). For Wilkinson’s own account of his relationship with Powell, focusing on his clerkship, see J. Harvie Wilkinson III, Serving Justice: A Supreme Court Clerk’s View (1974).

13.  Lopez, 419 U.S. at 591 (Powell, J., dissenting).

14.  Ibid., 585.

15.  Ibid., 594n12.

16.  Ibid., 594.

17.  Ibid., 593.

18.  Ibid., 598n19 (emphasis in original).

19.  Yudof, “Legalization of Dispute Resolution, Distrust of Authority, and Organizational Theory,” 902 (internal quotation marks omitted). See also Linda Mathews, “Suspensions Hearings for Pupils Upheld,” Los Angeles Times, Jan. 23, 1975, A1 (noting that even before Lopez Los Angeles schools provided hearings to students prior to suspending them).

20.  Robert Reinhold, “The Supreme Court and Rights of Pupils,” New York Times, Jan. 27, 1975, 17 (“In New York City, officials say students already enjoy much due process under both state law and local rules, which require a written notification for parents and a hearing within five days of any exclusion. Decisions may be appealed.”).

21.  Dolores Barclay, “Ruling on Suspended Pupils’ Rights Hit,” Los Angeles Times, April 16, 1975, C10.

22.  Gene I. Maeroff, “An End of Student Suspensions Is Urged,” New York Times, Sept. 17, 1975, 36.

23.  Fred M. Hechinger, “Unruly Students Deserve Due Process, Too,” Los Angeles Times, April 13, 1975, L3 (“romantic notion”); and Leon Letwin, “After Goss v. Lopez: Student Status as Suspect Classification?,” 29 Stanford Law Review 627, 646 (1977) (“euphoric view”). See also Robert A. Burt, “The Constitution of the Family,” 1979 Supreme Court Review 329, 342 (observing that Ingraham appears animated by “[a]n idealized image of conflict-free interpersonal relations”).

24.  Nathan Glazer, “Towards an Imperial Judiciary?,” 41 Public Interest 104, 107 (1975).

25.  George F. Will, “Schools Beset by Lawyers and Shrinks,” Washington Post, June 15, 2000, A33.

26.  Richard Arum, “Sparing Rods, Spoiling Children,” National Review, Oct. 11, 2004, 43, 43–44. For other writing where Arum suggests Lopez required elaborate due process procedures, see Richard Arum, Judging School Discipline: The Crisis of Moral Authority 204 (2003).

27.  Philip K. Howard, The Death of Common Sense: How Law Is Suffocating America 128 (1994).

28.  Henry S. Lufler Jr., “Courts and School Discipline Policies,” 197, 207, in Student Discipline Strategies: Research and Practice (Oliver C. Moles ed., 1990).

29.  Perry A. Zirkel and Mark N. Covelle, “State Laws for Student Suspension Procedures: The Other Progeny of Goss v. Lopez,” 46 San Diego Law Review 343, 349–50 (2009).

30.  In 1975, Professor Wilkinson provided a particularly sharp version of the claim that Lopez violated local control. “The rejection of such informal correctives by the Court is, in the end, nothing less than a rejection of the workings of the democratic process,” Wilkinson wrote. “And introducing the Constitution to do what the disciplinary process so often accomplishes on its own makes all the good sense of traveling from New York to Washington by way of San Francisco.” Wilkinson, “Goss v. Lopez: The Supreme Court as School Superintendent,” 70. More than two decades later, Judge Wilkinson could be heard whistling the same tune: “When we take the important step of constitutionalizing a problem such as student discipline, we do two things. First, we remove it from the hands of the democratic process and place it in the lap of the federal courts….[Second, we] indicate a preference for centralized rules and solutions over disparate state and local prescriptions.” J. Harvie Wilkinson III, “Constitutionalization of School Discipline: An Unnecessary and Counter-productive Solution,” 1 Michigan Law and Policy Review 309, 312 (1996).

31.  In 1996, Judge Patricia Wald of the D.C. Circuit contended that critics of Lopez would be better served by redirecting their anger toward local officials. See Patricia Wald, “Goss v. Lopez: Not the Devil, nor the Panacea,” 1 Michigan Law and Policy Review 331, 334–35 (1996). My argument here builds upon Wald’s insights.

32.  Arum, Judging School Discipline, 4. For an early articulation of the ideas that Arum would explore in greater depth, see Edward A. Wynne, “What Are the Courts Doing to Our Children?,” 64 Public Interest 3 (Summer 1981). Wynne argued, “American courts have undercut the parental role of the schools and have replaced the subtle and complex relations between pupil, teacher, and administrator…with discussions of children’s ‘rights.’…In response, educators, stripped of their authority and their aura of infallibility, have abdicated their parental duties and have become mere custodians. For children, then, the ‘victory’ won in their name for rights to protect them against the authority of school officials has been a pyrrhic one.” Ibid., 3–4. For similar claims that the schools suffered from the burdens of honoring due process, see Gerald Grant, The World We Created at Hamilton High 50–51 (1988).

33.  Anne Proffitt Dupre, Speaking Up: The Unintended Costs of Free Speech in Public Schools 34 (2009).

34.  Lino A. Graglia, “Constitutional Law Without the Constitution: The Supreme Court’s Remaking of America,” in A Country I Do Not Recognize: The Legal Assault on American Values 29–30 (Robert H. Bork ed., 2005).

35.  Robert H. Bork, Slouching Towards Gomorrah: Modern Liberalism and American Decline 96 (1996).

36.  Ibid., 104.

37.  Anne M. Glenzer, “Supreme Court Justice Says Religion Is Vital to Virtuous America,” Blue and Gray, Oct. 30–Nov. 13, 2006, 1, 6 (observing that Scalia’s comments attributed the decline of school discipline in part to the “application of due process to school affairs”).

38.  Heather Mac Donald, “Unsafe at Any Grade,” Wall Street Journal, March 25, 2004, D6.

39.  Philip K. Howard, Life Without Lawyers 105 (2009). Howard offered adumbrations of his anti-Lopez critique as early as 1994. Until Lopez, Howard insisted, “no one ever thought that due process had anything to do with running an elementary school or deciding to suspend an unruly eleventh grader. Principals and teachers had the authority to make decisions. Students, and their parents, did not think of their ‘rights.’ They had none. If you misbehaved, you were suspended or put on probation.” Howard, Death of Common Sense, 158. See also Howard, Life Without Lawyers 113 (calling Lopez “debilitating” and asserting that its requirements were written in “migraine-inducing language”). For related arguments, see Grant, World We Created at Hamilton High, 50–57.

40.  See Arum, Judging School Discipline, 208.

41.  Martha Minow, “Interpreting Rights: An Essay for Robert Cover,” 96 Yale Law Journal 1860, 1869–77 (1987). Minow’s insights have influenced my view of Lopez.

42.  See Lufler, “Courts and School Discipline Policies,” 207.

43.  See Derek W. Black, “The Constitutional Limit of Zero Tolerance in Schools,” 99 Minnesota Law Review 823, 825 (2015).

44.  See Julius Menacker and Ernest Pascarella, “How Aware Are Educators of Supreme Court Decisions That Affect Them?,” 64 Phi Delta Kappan 424, 426 (1983).

45.  Lopez, 419 U.S. at 582.

46.  David L. Kirp, “Proceduralism and Bureaucracy: Due Process in the School Setting,” 28 Stanford Law Review 841, 842 (1976).

47.  Wilkinson, “Goss v. Lopez: The Supreme Court as School Superintendent,” 72. Wilkinson also describes Lopez’s suspension procedures as “skeletal” and “threadbare.” Ibid., 40, 42. For influential criticism of the Supreme Court’s due process jurisprudence as a whole, and an article whose skeptical title is drawn from a stray phrase in Lopez, see Henry J. Friendly, “ ‘Some Kind of Hearing,’ ” 123 University of Pennsylvania Law Review 1267 (1975). Judge Friendly claimed Lopez forces considering “whether government can do anything to a citizen without affording him ‘some kind of hearing.’ ” Ibid., 1275.

48.  Letwin, “After Goss v. Lopez,” 637.

49.  Laurence H. Tribe, “Structural Due Process,” 10 Harvard Civil Rights–Civil Liberties Law Review 269, 313n128 (1975). Well before the Court decided Goss, Professor Tribe made an observation that contains relevance for suspended students and their procedural rights: “[I]t is at least arguable that…the process, and not the result in any particular case, is all-important.” Laurence H. Tribe, “Trial by Mathematics: Precision and Ritual in Legal Process,” 84 Harvard Law Review 1329, 1381 (1971).

50.  Buss, “Procedural Due Process for School Discipline,” 547, 549.

51.  “Fair Play at the Schoolhouse,” Chicago Tribune, Jan. 31, 1975, A2.

52.  See generally The Burger Court: The Counter-revolution That Wasn’t (Vincent Blasi ed., 1983) (arguing that the Burger Court as a general proposition refused to extend the liberal Warren Court’s jurisprudence, even if did not engage in the sharp rollback that many legal liberals feared). For a revisionist account suggesting that the Burger Court was more conservative than the conventional account suggests, see Michael J. Graetz and Linda Greenhouse, The Burger Court and the Rise of the Judicial Right (2016).

53.  See Warren Weaver Jr., “Supreme Court, 5–4, Backs Rights of Suspended Pupils,” New York Times, Jan. 23, 1975, 1 (“Voting in the [Lopez] minority were all four of former President Richard M. Nixon’s appointees to the bench”). See also Charlotte Moulton, “Minorities Get Setbacks During Last Court Term,” Los Angeles Sentinel, July 17, 1975, A8.

54.  Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506 (1969) (emphasis added).

55.  Professor Leon Letwin’s astute article offered an early version of this idea. See Letwin, “After Goss v. Lopez,” 638. My view of historical contingency within the Supreme Court’s school discipline jurisprudence is indebted to Professor Letwin, who made the argument in real time, underscoring the doctrinal uncertainty that observers felt during the Lopez era.

56.  “Seventh Annual Gallup Poll of Public Attitudes Toward Education,” 57 Phi Delta Kappan 227, 236 (1975); A Decade of Gallup Polls of Attitudes Toward Education, 1969–1978 219 (S. Elam ed., 1978).

57.  Attitudes Toward Education, 1969–1978, 2. See also Gordon F. Sander, “Schools Still Uncertain About Punishing Unruly,” New York Times, Aug. 28, 1977, 150.

58.  See, for example, Barry Friedman, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution (2009). For a critique of this idea, see Justin Driver, “The Consensus Constitution,” 89 Texas Law Review 755 (2011).

59.  Lopez, 419 U.S. at 569.

60.  See Brief of the National Association for the Advancement of Colored People et al., Lopez, 419 U.S. 565, 1974 WL 185916, at *10–*16 (1975); and Brief for the Children’s Defense Fund of the Washington Research Project Inc. et al., Lopez, 419 U.S. 565, 1974 WL 185919, at *21.

61.  Weaver, “Supreme Court, 5–4, Backs Rights of Suspended Pupils,” 1. For contemporaneous commentary linking suspensions to race, see Vernon E. Jordan Jr., “Kids Get Pushed out of School,” Los Angeles Sentinel, July 10, 1975, A7 (“Hundreds of thousands of children are expelled each year for disciplinary reasons, and black children form a disproportionately large percentage of them”); Maeroff, “End of Student Suspensions Is Urged,” 36 (noting that the Children’s Defense Fund “contends that minority school children suffer from the greatest abuses in the application of suspensions” because “[b]lack youngsters are suspended at a rate twice that of whites”); Mark G. Yudof, “Suspension and Expulsion of Black Students from the Public Schools: Academic Capital Punishment and the Constitution,” 39 Law and Contemporary Problems 374, 378 (1975) (“The fact is that in many desegregated school systems blacks are excluded from the schools far more often than whites”); and NAACP Legal Defense Fund, Division of Legal Information and Community Service, Report on Black Student “Pushouts”—a National Phenomenon (1972). Before Lopez, one federal judge attributed the higher rates of suspensions that black students receive to “institutional racism.” Hawkins v. Coleman, 376 F. Supp. 1330, 1337 (N.D. Tex. 1974). For a recent exploration of this phenomenon, see Monique W. Morris, Pushout: The Criminalization of Black Girls in Schools (2016).

62.  Wilkinson, “Goss v. Lopez: The Supreme Court as School Superintendent,” 30–31.

63.  “Notable & Quotable,” Wall Street Journal, Nov. 22, 1999, A22.

64.  See Gun-Free Schools Act of 1994, 20 U.S.C. § 7151 et seq. (1994); and Michael Imber et al., Education Law 192 (5th ed. 2014).

65.  For perceptive overviews of the rise of zero-tolerance policies, see Russell J. Skiba, Suzanne E. Eckes, and Kevin Brown, “African American Disproportionality in School Discipline: The Divide Between Best Evidence and Legal Remedy,” 54 New York Law School Law Review 1071, 1083–84 (2009); Russell J. Skiba, “The Failure of Zero Tolerance,” 22 Reclaiming Children and Youth 27 (2014); Black, “Constitutional Limit of Zero Tolerance in Schools”; and Eric Blumenson and Eva S. Nilsen, “One Strike and You’re Out? Constitutional Constraints on Zero Tolerance in Public Education,” 81 Washington University Law Quarterly 65, 84–85 (2003).

66.  Blumenson and Nilsen, “One Strike and You’re Out?,” 66. For an important article exploring the difficulties endemic to reforming excesses in the criminal law arena that can be understood to contain implications for reforming excesses in school discipline, see William J. Stuntz, “The Pathological Politics of Criminal Law,” 100 Michigan Law Review 505 (2001).

67.  As Professor Randall Kennedy has argued, “Thurgood Marshall carefully screened potential clients before agreeing to represent them [and] withheld his services…where he doubted that a person would be willing and able to present a good face to the public.” Randall Kennedy, “Lifting as We Climb,” Harper’s, Oct. 2015, 24, 29.

68.  Dirk Johnson, “7 Students Charged in a Brawl That Divides Decatur, Ill.,” New York Times, Nov. 10, 1999, A19.

69.  “Jesse Jackson’s Wrong Target,” Economist, Nov. 27, 1999, 29.

70.  Johnson, “7 Students Charged in a Brawl That Divides Decatur, Ill.,” A19.

71.  Ethan Bronner, “Student Rights Losing Ground: Does Recent Supreme Court Ruling Reflect a Growing Generational Alienation?,” Boston Globe, Feb. 7, 1988, A22. See ibid. (reporting that Clark “has become, in his way, an American hero”); and Sara Rimer, “Paterson Principal: A Man of Extremes,” New York Times, Jan. 14, 1988, B1 (reporting that Secretary of Education William Bennett called Clark “a national folk hero”).

72.  Ezra Bowen, “Getting Tough,” Time, Feb. 1, 1988, 52, 53.

73.  See Time, Feb. 1, 1988; and Lean on Me (Warner Brothers Pictures 1989).

74.  See Joe Clark (with Joe Picard), Laying Down the Law: Joe Clark’s Strategy for Saving Our Schools 42 (1989).

75.  I borrow the phrase “education law and order” from Sander, “Schools Still Uncertain About Punishing Unruly,” 150.

76.  Marc Fisher, “Drop That Spork! ‘Zero Tolerance’ Goes to Richmond,” Washington Post, Feb. 7, 2002, B1; and Ian Urbina, “It’s a Fork, It’s a Spoon, It’s a…Weapon? School Suspends Boy, 6,” New York Times, Oct. 12, 2009, A1. For other critical coverage of zero tolerance, see, for example, Dirk Johnson, “Schools’ New Watchword: Zero Tolerance,” New York Times, Dec. 1, 1999, A1; Debra Nussbaum, “Becoming Fed Up with Zero Tolerance,” New York Times, Sept. 3, 2000, NJ1; and Jessica Portner, “Zero-Tolerance Laws Getting a Second Look,” Education Week, March 26, 1997, 14.

77.  See, for example, Arum, Judging School Discipline, 195 (“Zero tolerance practices have likely been generally ineffective or counterproductive because they have failed to address the central problem of a decline in moral authority and legitimacy of school discipline”); Philip K. Howard, The Rule of Nobody: Saving America from Dead Laws and Broken Government 35 (2014) (“[A] seventh-grade girl in Indiana…gave back a pill (for attention deficit disorder) that a friend had put in her hand. The principal said he had no choice [but to apply zero tolerance], since she technically had ‘possession’ for a few seconds.”); and George F. Will, “ ‘Zero Tolerance’ Policies Are Getting out of Hand,” Boston Globe, Dec. 25, 2000, A23.

78.  Safford Unified School District No. 1 v. Redding, 557 U.S. 364, 400 (Thomas, J., dissenting) (quoting Maureen Downey, “Zero Tolerance Doesn’t Always Add Up,” Atlanta Journal-Constitution, April 6, 2009, A11).

79.  For his part, Justice Thomas has contended, “[T]he task of implementing and amending public school policies is beyond this Court’s function. Parents, teachers, school administrators, local politicians, and state officials are all better suited than judges to determine the appropriate limits on searches conducted by school officials. Preservation of order, discipline, and safety in public schools is simply not the domain of the Constitution. And, common sense is not a judicial monopoly or a Constitutional imperative.” Redding, 557 U.S. at 402 (Thomas, J., dissenting).

80.  Ibid., 401–2 (Thomas, J., dissenting) (quoting Valerie Richardson, “Tolerance Waning for Zero-Tolerance Rules,” Washington Times, April 21, 2009, A3).

81.  For an astute overview and analysis of Benjamin Ratner’s case, which influenced my own views, see Black, “Constitutional Limit of Zero Tolerance in Schools,” 860–62.

82.  Ratner v. Loudoun County Public Schools, 2001 WL 855606, at *2 (4th Cir. 2001), cert. denied, 534 U.S. 1114 (2002).

83.  Ibid., *3 (Hamilton, J., concurring).

84.  Lopez, 419 U.S. at 586 (Powell, J., dissenting).

85.  Julie Underwood, “The 30th Anniversary of Goss v. Lopez,” 198 Education Law Reporter 795, 803 (2005).

86.  Lopez, 419 U.S. at 576 (internal quotation marks and citation omitted).

87.  Ibid., 579, 583.

88.  Even if it might be argued that Ratner has no claim under procedural due process (because, that is, he received the required process), he may still be able to prevail on substantive due process. See Wood v. Strickland, 420 U.S. 308, 326 (1975) (“Public…school students do have substantive and procedural rights while at school”).

89.  Seal v. Morgan, 229 F.3d 567, 581 (6th Cir. 2000).

90.  See Mark G. Yudof et al., Educational Policy and the Law 383 (5th ed. 2012) (providing the spiked punch hypothetical). For a case that actually involved a school dance with punch that had been spiked so mildly (with Right Time Malt Liquor, no less) that no one detected the taste of alcohol, see Strickland, 420 U.S. 308.

91.  See Bundick v. Bary City Independent School District, 140 F. Supp. 2d 735 (S.D. Tex. 2001) (repudiating Seal v. Morgan’s holding that school officials must inquire into mindset and knowledge). For another instance of a court turning a blind eye to an egregious suspension, see S.G. v. Sayreville Board of Education, 333 F.3d 417, 424–25 (3d Cir. 2003) (upholding the suspension of a kindergartner who stated, while playing a game of cops and robbers at recess, “I’m going to shoot you”). For one of the relatively few cases that accords with the Sixth Circuit’s approach in Seal v. Morgan, see Colvin v. Lowndes County School District, 114 F. Supp. 2d 504, 512 (N.D. Miss. 1999) (“Individualized punishment by reference to all relevant facts and circumstances regarding the offense and the offender is a hallmark of our criminal justice system”) (internal quotation marks and citation omitted). For scholars casting serious doubt on the effectiveness of zero-tolerance policies, see, for example, Troy Adam, “The Status of School Discipline and Violence,” 567 Annals of the American Academy of Political and Social Science 140, 148 (2000); and Russ Skiba and Reese Peterson, “The Dark Side of Zero Tolerance: Can Punishment Lead to Safe Schools?,” 80 Phi Delta Kappan 372, 376 (1999).

92.  For the relevant background on Ingraham’s injuries and Charles Drew Junior High School, see Ingraham v. Wright, 498 F.2d 248, 256–59 (5th Cir. 1974); Ingraham v. Wright, 430 U.S. 651, 655–59 (1977); Brief for Petitioners, Ingraham, 430 U.S. 651, 1976 WL 194478, at *6–*17.

93.  See Proverbs 13:24 and 22:15. For four additional verses from Proverbs that trumpet corporal punishment, see Proverbs 19:18, 23:13, 23:14, and 29:15. For a compilation of these verses, see James Keith Franklin, Corporal Punishment in the Public Schools 12 (1963).

94.  See Herbert Arnold Falk, Corporal Punishment: A Social Interpretation of Its Theory and Practice in the Schools of the United States 19 (1941) (quoting Dorchester Town Records, Jan. 4, 1645).

95.  See Ellwood P. Cubberley, Public Education in the United States 57 (rev. ed. 1934).

96.  “Stop That Rod,” New York Times, May 30, 1976, 120.

97.  Patricia Anstett, “Spanking in School—the Debate,” Boston Globe, Oct. 5, 1976, 22.

98.  Buss, “Procedural Due Process for School Discipline,” 560.

99.  “Bottoms Up in Big D,” Newsweek, May 17, 1971, 99.

100.   Marvin Pave and Ray Richard, “Paddling Is Out in Mass. Schools, Despite US Court,” Boston Globe, Oct. 21, 1975, 1 (internal quotation marks omitted, quoting Donald H. Russell, director of the Massachusetts Courts Clinics).

101.   Eighth Amendment, U.S. Constitution.

102.   Trop v. Dulles, 356 U.S. 86, 101 (1958) (Warren, C.J., plurality opinion). See also Kennedy v. Louisiana, 554 U.S. 407, 419–21 (2008).

103.   Thompson v. Oklahoma, 487 U.S. 815, 830 (1988).

104.   Brief for Respondents, Ingraham, 430 U.S. 651, 1976 WL 194479, at *9.

105.   See Irene Merker Rosenberg, “Ingraham v. Wright: The Supreme Court’s Whipping Boy,” 78 Columbia Law Review 75, 105n167 (1978) (“According to the statistics for 1971, Drew Junior High School had 1,217 students, all of whom were black. As of 1977, the student population has been reduced to 873 students, but the racial composition remains precisely the same.”). Although one cannot know for certain, it seems probable that the justices realized that Ingraham and his classmates who were contesting corporal punishment were black. As a preliminary matter, the brief filed in the Supreme Court opposing corporal punishment quoted Ingraham and several of his fellow students testifying in the black English vernacular. See Brief for Petitioners, Ingraham, 1976 WL 194478, at *9–*17; the joint appendix also reproduced extensive student testimony spoken in black English vernacular. On the phenomenon of black English vernacular more broadly, see Herbert L. Foster, Ribbin’, Jivin’, and Playin’ the Dozens (1974). Even if the brief did not racially identify the students, however, that does not mean that the justices were unaware of the students’ race. That knowledge might have existed because Charles R. Drew Junior High School was named for a celebrated black scientist, and—by the racial conventions of that time—that fact alone strongly indicated that Drew’s student body must have been largely black. Justice Thurgood Marshall once asked a question at oral argument demonstrating the racial connection between schools named for black figures and their student bodies when he inquired whether a certain “Washington High School” was “a George,” or a “Booker T.” Marshall dissented in Ingraham and certainly almost could have been counted on to alert his colleagues to the racial identity of Drew’s students. See Sandra Day O’Connor, “Thurgood Marshall: The Influence of a Raconteur,” 44 Stanford Law Review 1217, 1220 (1992) (disclosing that Justice Marshall often informed his colleagues of racial realities that they did not otherwise know).

106.   Ingraham, 430 U.S. at 670 (1977). Prior to Ingraham, some lower federal courts also disposed of Eighth Amendment challenges to corporal punishment without deeply engaging the question. See, for example, Ware v. Estes, 328 F. Supp. 657, 660 (N.D. Tex. 1971), aff’d per curiam, 458 F.2d 1360 (5th Cir. 1972), cert. denied, 409 U.S. 1027 (1972); and Glaser v. Marietta, 351 F. Supp. 555, 557–58 (W.D. Pa. 1972) (“A method of parental control originating in the mists of prehistoric times, commended in Biblical references, sanctioned by Blackstone’s Commentaries and defended by many of today’s child psychologists, is not lightly to be declared unconstitutional”).

107.   Ingraham, 430 U.S. at 681.

108.   Ibid., 670n39.

109.   Ibid., 684n1 (White, J., dissenting).

110.   Ibid., 692.

111.   See ibid., 688n4, 691 (citing Estelle v. Gamble, 429 U.S. 97 [1976]). For academic criticism of Ingraham’s notion that the Eighth Amendment’s Cruel and Unusual Punishment Clause does not apply to noncriminal settings, see Rosenberg, “Ingraham v. Wright,” 84; and Lawrence A. Alexander and Paul Horton, “Ingraham v. Wright: A Primer for Cruel and Unusual Jurisprudence,” 52 Southern California Law Review 1305, 1340–48 (1979).

112.   Ingraham, 430 U.S. at 695 (White, J., dissenting).

113.   My formulation is inspired by James E. Ryan, “The Supreme Court and Public Schools,” 86 Virginia Law Review 1335, 1367 (2000) (“Just as a bell cannot be unrung, a paddling cannot be undone”).

114.   Laurence H. Tribe, American Constitutional Law 916 (1978).

115.   Rosenberg, “Ingraham v. Wright,” 95–96.

116.   J. Patrick Mahon, “Ingraham v. Wright: The Continuing Debate over Corporal Punishment,” 6 Journal of Law and Education 473, 477 (1977).

117.   “Teachers Don’t Need Paddles,” Chicago Tribune, April 24, 1977, A4.

118.   “Supreme Court: Wrong on Spanking,” Los Angeles Times, April 24, 1977, F4.

119.   “Paddling Justice,” New York Times, April 21, 1977, 24. For still more editorial criticism of Ingraham, see “Sparing the Child,” Boston Globe, April 21, 1977, 28; and “A Remarkable Decision,” 22 Social Work 4, July 1977, 258.

120.   Merrill Sheils and Frederick V. Boyd, “Ruling on the Rod,” Newsweek, May 2, 1977, 65.

121.   Sander, “Schools Still Uncertain About Punishing Unruly,” 150.

122.   See “Don’t Spare the Rod,” Time, May 2, 1977, 58. Not surprisingly, the difficulty grasping that some schools continue to inflict corporal punishment on students has proven a persistent phenomenon. Some sophisticated observers even suggest that the Supreme Court has prohibited the practice. See Bork, Slouching Towards Gomorrah, 104–5 (linking the Supreme Court to a decline in student discipline and suggesting the Court outlawed “the paddle for students who disrupt study hall”).

123.   Robert H. Friedman and Irwin A. Hyman, “Corporal Punishment in the Schools: A Descriptive Survey of State Regulations,” in Corporal Punishment in American Education: Readings in History, Practice, and Alternatives 157, 157 (Irwin A. Hyman and James H. Wise eds., 1979) (quoting Martinsburg Journal, April 22, 1977).

124.   James J. Kilpatrick, “But It’s Hearts That Bleed,” Los Angeles Times, May 13, 1977, D7.

125.   Gene I. Maeroff, “Spanking Rule Found an Aid to Discipline,” New York Times, April 25, 1977, 24. Some leaders within the education world disagreed with this assessment and professed to find Ingraham deeply confounding. Robert Chanin, the National Education Association’s general counsel, stated, “This decision makes no sense to us.” Sheils and Boyd, “Ruling on the Rod,” 65.

126.   “Spare the Rod?,” Newsweek, Nov. 15, 1976, 105. Intriguingly, some evidence suggests that—despite Justice Powell’s valorization of local control—many Dade County residents (perhaps even the majority) opposed corporal punishment. According to Newsweek, “[T]he Dade County school board has been holding public hearings, hoping to set guidelines. The board itself is unanimously opposed to corporal punishment—and parents have testified about 5 to 1 against it. But teach[ers] are overwhelmingly in favor, and they are demanding the right to set their own policies.” Ibid. These cleavages on corporal punishment within Dade County make clear that “local control” is a term that admits of multiple meanings. For related criticism of Ingraham’s invocation of local control, see Note, “Due Process, Due Politics, and Due Respect: Three Models of Legitimate School Governance,” 94 Harvard Law Review 1106, 1112–16, 1124 (1981) (“The record indicated that the Dade County School System was the sixth largest in the country; student enrollment was estimated to be over 240,000. The Court noted that abuses of corporal punishment were not epidemic but confined to one school. To the extent that the problem concerned parents in one neighborhood, the likelihood that the school board would experience significant political pressure was small.”).

127.   Sheils and Boyd, “Ruling on the Rod,” 65, 66. For another article disclosing Ingraham’s incarceration, see “Don’t Spare the Rod,” Time, 58.

128.   Rosenberg, “Ingraham v. Wright,” 89.

129.   David B. Tyack, The One Best System: A History of American Urban Education 75 (1974).

130.   Ellen Jane Hollingsworth, Henry S. Lufler Jr., and William H. Clune III, School Discipline: Order and Autonomy 111 (1984).

131.   Eduardo Cue, “School Spanking Ruling Not Seen as Affecting Area,” Washington Post, April, 22, 1977, C1.

132.   See, for example, Deana Pollard Sacks, “State Actors Beating Children: A Call for Judicial Relief,” 42 UC Davis Law Review 1165, 1175 (2009); James F. Gregory, “The Crime of Punishment: Racial and Gender Disparities in the Use of Corporal Punishment in U.S. Public Schools,” 64 Journal of Negro Education 454, 457 (1995); Timothy John Nolen, “Smacking Lesson: How the Council of Europe’s Ban on Corporal Punishment Could Serve as a Model for the United States,” 16 Cardozo Journal of Law and Gender 519, 524 (2010); and Heddy Muransky and Linda J. Fresneda, “What Do Prisoners and Zoo Animals Have in Common? They Have More Protection from Physical Violence than School Children in Nineteen States,” 5 University of Miami Race and Social Justice Law Review 73, 84 (2015).

133.   Office for Civil Rights, U.S. Department of Education, Civil Rights Data Collection 2011–2012, Projected Values for the Nation (2012).

134.   “Bottoms Up in Big D,” 99.

135.   Godfrey Anderson, “Dallas Called Capital of School Punishment,” Boston Globe, Oct. 24, 1972, 21. As the title of this newspaper article attests, Dallas had an exceptionally high rate of corporal punishment in the early 1970s. The Dallas school superintendent Nolan Estes viewed the practice as a necessary evil: “We don’t think we ought to paddle, but until there is a utopian society we will use it as a method of discipline. It is a last resort.” Despite this somewhat ambivalent attitude toward corporal punishment, Estes disclosed that he would sooner resign than lead a school system that prohibited paddling. See ibid.

136.   Office for Civil Rights, U.S. Department of Education, Civil Rights Data Collection 2011–2012, Projected Values for the Nation (2012).

137.   According to the U.S. Department of Education’s Office of Civil Rights, male students received 78.3 percent of corporal punishment. Ibid.

138.   Adah Maurer, “It Does Happen Here,” in Corporal Punishment in American Education 219, 226. See also “Mother Warns Teachers Who Spanked Her Child,” San Antonio Star, Oct. 2, 1977, 8.

139.   Maurer, “It Does Happen Here,” 226.

140.   Ibid., 226–27.

141.   See Serafin v. School of Excellence in Education, 252 F. App’x 684, 2007 WL 3226296, at *1 (5th Cir. Oct. 30, 2007) (unpublished opinion), cert. denied, 128 S. Ct. 2962 (2008). For a compelling critique of corporal punishment in schools and a vivid description of Serafin’s case, see Sacks, “State Actors Beating Children,” 1165, 1165–68, 1167n1. See also Deana A. Pollard, “Banning Corporal Punishment: A Constitutional Analysis,” 52 American University Law Review 447 (2002). In the absence of a Supreme Court decision revisiting Ingraham, some lower federal courts have granted relief to students who received particularly outrageous forms of corporal punishment from educators by finding that the treatment violates substantive due process. The U.S. Court of Appeals for the Fourth Circuit’s decision in Hall v. Tawney, the leading case in this area, announced that excessive corporal punishment violates students’ substantive due process rights if “the force applied caused injury so severe, was so disproportionate to the need presented, and was so inspired by malice or sadism rather than a merely careless or unwise excess of zeal that it amounted to a brutal and inhumane abuse of official power literally shocking to the conscience.” Hall v. Tawney, 621 F.2d 607, 613 (4th Cir. 1987). See also Garcia by Garcia v. Miera, 817 F.2d 650, 654 (10th Cir. 1987) (“Although Ingraham makes clear that ordinary corporal punishment violates no substantive due process rights of school children…we believe that opinion clearly signaled that, at some degree of excessiveness or cruelty, the meting out such punishment violates the substantive due process rights of the pupil”). Perhaps the most egregious set of facts that motivated a federal appellate court to find that an educator violated a student’s substantive due process rights arose in the Eleventh Circuit’s opinion in Neal v. Fulton County Board of Education. There, a school official struck a student who had been fighting with another student with a metal weight lock in his left eye—a blow so forceful that it knocked the student’s eye completely out of its socket, leaving it wholly unusable. See 229 F.3d 1069 (11th Cir. 2000). For other instances where educators have corporally punished students in a way that did not involve paddling, see, for example, London v. Directors of Dewitt Public Schools, 194 F.3d 873, 875 (8th Cir. 1999) (educator dragged student across room and then banged his head against metal pole); Metzger v. Osbeck, 841 F.2d 518, 519–20 (3d Cir. 1988) (educator placed student in a chokehold that caused the student to lose consciousness and, upon falling to the pavement, to break his nose and fracture his teeth); and Gaither v. Barron, 924 F. Supp. 134, 135–36 (M.D. Ala. 1996) (teacher head-butted student). That lower federal courts have in some particularly alarming instances found a way to work around the Supreme Court’s inaction on corporal punishment in no way indicates that the Court should not also eliminate more workaday instances.

142.   See Adrian Vermeule, “The Judiciary Is a They, Not an It: Interpretive Theory and the Fallacy of Division,” 14 Journal of Contemporary Legal Issues 549, 550 (2005).

143.   Ryan, “Supreme Court and Public Schools,” 1368. For two well-known articles that wrestle with the tension between the Court’s opinions in Lopez and Ingraham, see Anne Proffitt Dupre, “Should Students Have Constitutional Rights? Keeping Order in the Public Schools,” 65 George Washington Law Review 49, 59–68 (1996); and Emily Buss, “Constitutional Fidelity Through Children’s Rights,” 2004 Supreme Court Review 355, 378.

144.   See, for example, Rosenberg, “Ingraham v. Wright,” 88 (“[T]he Court’s decision on the eighth amendment issue is perhaps most accurately seen as a response to increasing violence within the nation’s public schools”).

145.   Ibid., 88n77 (citing “Challenge for the Third Century: Education in a Safe Environment—Final Report on the Nature and Prevention of School Violence and Vandalism,” Subcommittee to Investigate Juvenile Delinquency of the Senate Committee on the Judiciary, 95th Cong., 1st Sess. 7–19 [Comm. print 1977]). For newspaper coverage of school violence post-Lopez, see Enid Nemy, “Violence in Schools Now Seen as Norm Across the Nation,” New York Times, June 14, 1975, 1; Bart Barnes et al., “Violence Proliferates in Area Schools,” Washington Post, May 18, 1975, 1; and Bart Barnes, “Violence Soars in U.S. Schools,” Washington Post, April 10, 1975, 1.

146.   “Public Schools,” Time, Nov. 14, 1969, 49.

147.   See Buss, “Procedural Due Process for School Discipline,” 549, 549n12.

148.   See Glazer, “Towards an Imperial Judiciary?”; Thomas Ehrlich, “Legal Pollution: Increasingly Often, There Ought Not to Be a Law,” New York Times Magazine, Feb. 8, 1976, SM5; and Jerrold K. Footlick, “Too Much Law?,” Newsweek, Jan. 10, 1977, 42.

149.   Footlick, “Too Much Law?,” 42–43.

150.   Philip Hager, “School Paddlings—Is It Constitutional?,” Los Angeles Times, Nov. 4, 1976, 4.

151.   Ingraham, 430 U.S. at 670n39.

152.   Lopez, 419 U.S. at 597–99 (Powell, J., dissenting). Justice Powell’s parade of horribles has not materialized. Indeed, the Supreme Court itself quickly made clear that due process typically had no applicability to academic assessments. See Board of Curators of University of Missouri v. Horowitz, 435 U.S. 78, 85–91 (1978) (distinguishing Lopez).

153.   See Alan Reitman, “The Law and Corporal Punishment: Recent Legal Decisions on Corporal Punishment in Schools,” paper presented at the Annual Convention of the American Psychological Association, Sept. 1, 1975, 34–35 (noting that a 1970 Gallup poll found 62 percent of respondents supported corporal punishment in lower grades). For additional polling data on corporal punishment during the 1970s, see the sources cited in Justice Powell’s opinion for the Court in Ingraham, 430 U.S. at 661n17. For a more recent survey gauging attitudes toward corporal punishment, see “Disciplining a Child,” Survey USA (2005) (revealing that only 23 percent of respondents supported corporal punishment in schools, ranging from a high of 53 percent in both Arkansas and Mississippi to a low of 8 percent in New Hampshire); and “Ipsos Poll Conducted for Reuters: Corporal Punishment Topline,” Ipsos, Oct. 6, 2014 (finding 35 percent of U.S. correspondents agreed that “corporal punishment should be allowed at school, as long as it isn’t excessive”).

154.   Trop, 356 U.S. at 100–101.

155.   Office for Civil Rights, U.S. Department of Education, Civil Rights Data Collection 2011–2012, Projected Values for the Nation (2012).

156.   See Graham v. Florida, 560 U.S. 48 (2010).

157.   “Corporal Punishment Policies Around the World,” CNN, Nov. 9, 2011.

158.   See, for example, Thompson, 487 U.S. at 830; and Roper v. Simmons, 543 U.S. 551, 576–78 (2005).

159.   The Department of Education’s Office of Civil Rights collected these figures in 2006 and 2012. See Office for Civil Rights, U.S. Department of Education, Civil Rights Data Collection 2006, Projected Values for the Nation (2006); and Office for Civil Rights, U.S. Department of Education, Civil Rights Data Collection 2011–2012, Projected Values for the Nation (2012).

160.   Cooper v. McJunkin, 4 Ind. 290, 292 (1853) (Stuart, J.).