When it comes to exposing the illegitimacy of the administrative state, Columbia Law School constitutional scholar Philip Hamburger’s work has been invaluable. This past weekend, in a Wall Street Journal op-ed, he turned his attention to another pernicious progressive project: the conversion of the nation’s public schools into ideological-indoctrination factories that peddle woke, race-obsessed anti-Americanism.
Professor Hamburger is right to highlight this project’s offensiveness to the parents of schoolchildren as among its worst features. That said, parental dissent, which is widespread but not unanimous, is just one reason why the project should be resisted. And Hamburger strains mightily not only to portray this dissent as the dispositive objection to progressive curricula, but to portray such curricula as a violation of the constitutional right to free speech.
It is an ill-conceived theory, and reliance on it will only disserve a critical cause by giving progressives an easy target to shoot at.
Education is mostly speech, and parents have a constitutional right to choose the speech with which their children will be educated. They therefore cannot constitutionally be compelled, or even pressured, to make their children a captive audience for government indoctrination.
It would be generous to describe these propositions as dubious. Let’s assume for argument’s sake that most pedagogy, like most human interaction, takes the form of speech, and therefore that the whole of education is, as Hamburger maintains, covered by the First Amendment. Even if all that were true, what he is arguing for here would not be freedom of speech, but freedom from speech.
Essentially, he posits that the First Amendment gives one party to a protected communication a veto over the other. By this logic, if parents wanted their children to be taught that two plus two equals five, teachers would be expected to comply. Ironically, moreover, Hamburger’s suggestion that public schools are compelling parents to “make their children a captive audience for government indoctrination,” or at least pressuring them to do so, is belied by the very legal authority that he offers in support of his specious First Amendment claim.
That precedent is Pierce v. Society of Sisters, a 1925 Supreme Court decision. Society of Sisters involved an Oregon law mandating that children attend the state’s public schools, which would have the effect of shuttering private schools. Hamburger may be right that the Oregon law was motivated by anti-Catholic bigotry. Yet his description of the case is circumscribed in its implication that only religious schools stood to be affected by the law. From that faulty premise, he proceeds to misconstrue the Court’s invalidation of the law as granting parents a right to control the content of their children’s education on First Amendment grounds. He then compounds this error by rationalizing that, because “the freedom of parents in educating their children belongs to all parents, not only the faithful,” the First Amendment liberty the Court must have been relying on is free speech, not free exercise of religion.
Where to begin? Perhaps with the fact that Society of Sisters is not a First Amendment case. Nor was it solely concerned with private schools of a religious orientation.
The Society of Sisters corporation — which operated various primary, high school, and junior-college schools — was joined by another plaintiff objecting to the state’s public-school mandate: Hill Military Academy, a nonreligious enterprise (it operated military-training academies for boys age five to 21) that would also have been put out of business by the Oregon law.
The Court invalidated the law not on First Amendment grounds but explicitly on the grounds that these businesses’ Fourteenth Amendment right to economic liberty, rooted in the protection of property, had been violated.
To be sure, the Court found that the religious and military schools would be impermissibly destroyed because the state was “unreasonably interfer[ing in] the liberty of parents and guardians to direct the upbringing and education of children under their control.” But the remedy for that, the Court ruled, was that parents could not be compelled to send their children to state-operated public schools. The Court did not come close to implying — much less holding — that the Constitution empowered parents to control the content of education in public schools.
Indeed, the Court implicitly endorsed the content of public-school curricula: In upholding the private schools’ right to operate, the Court stressed that Hill Military Academy, just like the public schools, provided “courses of study [that] conform to the requirements of the state board of education.”
State standards were, of course, different in 1925 than they tend to be today in jurisdictions dominated by progressives. As the Court then observed:
No question is raised concerning the power of the state reasonably to regulate all schools, to inspect, supervise and examine them, their teachers and pupils; to require that all children of proper age attend some school, that teachers shall be of good moral character and patriotic disposition, that certain studies plainly essential to good citizenship must be taught, and that nothing be taught which is manifestly inimical to the public welfare.
Obviously, even though many of our teachers are as exemplary as ever, today we can no longer blithely assume that states will ensure students are instructed in principles of good citizenship, as conveyed by teachers of good character and patriotic disposition. State support for progressives’ indoctrination agenda precisely entails unleashing willfully left-wing educators to undermine patriotism. Nevertheless, the Constitution and the Bill of Rights did not federalize education, which remains a state responsibility in our federalist system. Society of Sisters affirms that the states have the power to supervise and regulate schools — public and private.
That does not render parents helpless. Far from it. If parents find state public schools wanting, Society of Sisters offers them a remedy: They can send their children to the private schools that the Court’s ruling safeguarded.
The case simply does not imply that parents have a First Amendment right to control what is taught in public schools. Nor is it clear how such a right would work in practice, since (a) the First Amendment aims to promote even objectionable speech, not suppress it; and (b) not all parents would agree on what should be taught in the public schools, which is why the Court’s vouchsafing of a viable alternative to the public schools makes sense.
Constitutional conservatives have too often fallen into the trap of believing the courts will save us from the progressive onslaught — even when constitutional counterclaims were strong, as for example were the First Amendment free-speech objections to campaign-finance legislation and the commerce-clause objections to Obamacare. The judiciary is not going to rescue parents from the Left’s abuse of scholastic instruction through means that ought to be anathema to constitutional conservatives regardless: a federal judicial diktat based on an unsupportable reading of free-speech principles.
The First Amendment offers no quick fix here. The only way to solve the problem is through democratic accountability at the local level: Parents, who have the greatest interest in their children’s education, must get themselves elected to school boards and make their voices heard in protest against progressive indoctrination.
Thankfully, that push is already underway.