I think the world of Phil Hamburger. I am thus not only grateful for his Corner post, in which he takes the time to address my dissent (in last weekend’s column) from his Wall Street Journal op-ed; I am even more relieved that our differences are narrower than my column suggests. I do confess, though, to being baffled by his assertion that my interpretation of his thesis — namely, that the First Amendment gives parents a right to control what is taught in the public schools — is “actually . . . nearly the opposite” of what he meant.
Here is the sub-headline of Professor Hamburger’s piece: “Education consists mostly in speech, and parents have a right to exercise authority over what their children hear” (emphasis added). To be sure, the writer is often not responsible for the headlines chosen by editors. But apparently the Journal’s excellent editorial staff believed he was arguing for parental authority over the content of school instruction. And with good reason.
I will circle back to my basic disagreement with Hamburger that parents have what he calls a “right to educational speech” grounded in the First Amendment — the disagreement on which my column dwelled. I’d like to begin, instead, by calling attention to a particularly insightful part of Hamburger’s WSJ piece, one that I did not dwell on because I substantially agree with it. It is more germane now because he says I have misconstrued him.
Hamburger argued: “A long line of Establishment Clause decisions recognize the risk of coercion in public-school messages.” He pointed out that the Supreme Court “condemned private religious teaching in rooms leased from public schools.” In so doing, it reasoned that — here, Hamburger quotes Justice William Brennan’s 1985 majority opinion in the sharply divided Grand Rapids School District v. Ball (1985) decision — “Such indoctrination, if permitted to occur, would have devastating effects on the right of each individual voluntarily to determine what to believe (and what not to believe) free of any coercive pressures from the State.”
This line of precedent effectively vested both parents and non-believers in the religious doctrine at issue with a veto over that doctrine’s being taught in the public schools. The supporting rationale, Hamburger explains, involved a combination of coercion (the law requires school attendance) and “the vulnerability of children to indoctrination.”
Adroitly, Hamburger posited that “the danger of coerced belief is not confined to official religious speech. Subjecting children to official political, racial, sexual and antireligious speech can be equally coercive.” I could not more emphatically agree with him about that. Still, since the result of the establishment-clause precedents he relies on was content restriction on what could be taught in the schools, I understood him to be arguing, analogously, that the First Amendment would also provide parents with the right to restrict state school indoctrination through political, racial, sexual, and antireligious speech.
Hamburger and I agree that the Supreme Court has already ruled that parents may not be compelled to send their children to public school. He was obviously contending that that relief is not good enough, mainly because financial straits make taxpayer-funded public schools the only realistic option for some families. Given that Hamburger made that point in conjunction with (a) the Supreme Court precedents that support banning indoctrination (at least in the religious context), and, again, (b) his apparent overarching contention that “parents have a right to exercise authority over what their children hear,” I took him to be arguing that parents have a right to control what their children are taught, at least to the extent of preventing progressive indoctrination.
In today’s post, Hamburger says I have him wrong. He supposes that I must be “confusing [his] argument with current debates over contested curricula.” Well . . . I don’t know how I could possibly have gotten confused into thinking that’s what he was talking about. Perhaps it was that the first three paragraphs of his WSJ essay are devoted to the current debates over contested curricula — including the complaint that schools “now” burden parents with “even sexual and racial indoctrination”; Terry McAuliffe’s now-infamous insistence that parents should not be telling schools what to teach; and Attorney General Merrick Garland’s equally notorious memo dispatching the FBI to investigate parents who are protesting the curricula at schoolboard meetings.
In any event, Hamburger says he’s not talking about a parental veto over the content of instruction. He is saying that “parents have a right not to be pressured into sending their kids to public school.” But, as noted above, the Supreme Court has already held that parents cannot be forced to send their kids to public school — they can send them to private school. By Hamburger’s lights, this does not obviate the financial pressure. Parents are coerced by law to send children to school; to satisfy this requirement, the government offers them the public benefit of tuition-free schools, but the string attached it that this substitutes the government’s speech for the parents’ speech. Hamburger reasons that this violates the First Amendment and therefore that the public school system is unconstitutional.
What is to be done about that? Hamburger is not clear. He stresses in his Corner post that he is not arguing for content restriction. Okay, stipulated. His WSJ op-ed speculates that, if parents can get courts to rule that the system violates the Constitution, the state will have to brainstorm solutions — e.g., tax exemptions or vouchers for dissenting parents.
Personally, I’d be in favor of that. Where I part company (as more fully explained in my column) is in the premise that education equals speech, such that parents have a First Amendment right to have the education speech of their choosing imparted on their children, to the exclusion of the state’s education speech.
I just do not believe Pierce v. Society of Sisters supports this theory, or is even a First Amendment case. I’d respectfully counter that Hamburger is offering a right, unenumerated in the Constitution, to parental control over education. The Ninth Amendment elucidates our retention of rights that are not enumerated in the Constitution, and parental control over education is certainly a worthy one. But Hamburger is straining to bring this right under the umbrella of the First Amendment because unenumerated rights are typically pressed in court via substantive due process, a dubious theory that usually loses.
One last thing: I did not belabor or take issue with Professor Hamburger regarding “the nativist and theological prejudice that has long shaped public education” because I agree with him — largely because I’ve read much of his invaluable work on that subject. In context, when I said, “Hamburger may be right that the Oregon law was motivated by anti-Catholic bigotry” (emphasis added), it was not my intention to convey skepticism about that bigotry. It was as a prelude to pointing out that (a) the Oregon statute did not negatively affect only Catholics (one plaintiff in Society of Sisters was a military academy that was not a religious school); and (b) Society of Sisters was not decided on First Amendment religious-liberty grounds.
Phil Hamburger is a brilliant thinker and I am thankful that he is focused on progressive indoctrination in the public schools, which may be the most important issue of our time. I am not persuaded that his First Amendment theory works, but legislative adoption of the solutions he ruminates on would be a welcome outcome.