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The Power of the Supreme Court Inside America’s Schools

Driver’s lengthy discussion of Brown’s legacy is especially astute. In 2018, American schools remain highly segregated by race and class, and there is widespread cynicism about Brown. The court’s stirring moral statement in the case — that separate is inherently unequal — was followed, in subsequent years, by its failure to invalidate de facto school segregation in the North and West, which were caused by discriminatory housing and school districting policies. Then, in 2007, a divided court undid much of Brown’s legacy by proclaiming that districts could not consider an individual student’s race when making school assignments — even if the purpose was to desegregate.

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That “colorblind” doctrine has driven many of the right’s favored legal causes in recent years, most prominently its efforts to roll back voting rights protections and affirmative action in elite college admissions.

Nevertheless, Driver argues that Brown remains impactful. First, it provided several generations of children with the valuable experience of attending integrated schools. Not only did integration lead to student achievement gains, but, as Driver points out, desegregation has generally been popular where it was actually implemented. In 1981, at the peak of busing, a Harris Poll of parents whose children were bused to promote integration found only 11 percent viewed the experience negatively.

Second, Brown made a difference well beyond the schoolhouse gates. A decade before the Civil Rights Act became law, the ruling offered “a powerful rhetorical and moral weapon that helped to catalyze the nation toward the goal of racial equality.”

The book’s publication is exquisitely well timed, given President Trump’s nomination of Brett Kavanaugh to replace Justice Kennedy. Kennedy’s influence on education has been huge. In a concurring opinion in the 2007 school segregation case, Parents Involved in Community Schools v. Seattle School District No. 1, he suggested that districts can still work to achieve racial integration by using zoning methods and other strategies that don’t involve considering the race of individual children; dozens of districts have done so. He also upheld the “10 percent plan” for ensuring diversity at the University of Texas, Austin. While affirmative action in college admissions is a topic beyond the scope of Driver’s book, it is likely to come back before the Supreme Court in the coming years.

A number of the important cases Driver reviews were decided 5 to 4, reminding us (not that we need a reminder) of the outsize influence a single justice can have. In one such case, Board of Education v. Earls in 2002, Justice Clarence Thomas wrote the decision allowing schools to require a urinalysis drug test as a condition for enrolling in extracurricular activities. Since then, the practice has proliferated, with as many as one in seven schools randomly testing students.

The court upheld corporal punishment in the 1977 case Ingraham v. Wright by a similarly slim margin. Driver writes perceptively about the persistence of this horrifying practice in American schools; according to the Department of Education, during the 2013-14 school year, more than 110,000 American students, disproportionately black, were subjected to corporal punishment. The practice is most prevalent in Alabama, Arkansas, Georgia, Mississippi and Texas, but remains legal in 22 states. It is part of a long American tradition of using violence at school to “manage social outsiders,” Driver writes, including black children and, during the 19th century, Catholic immigrants.

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