Jan Resseger takes a look at an upcoming law review article by legal scholar Derek Black. Reposted with permission.
In an article forthcoming in the George Washington Law Review, Education, Orthodoxy, and the First Amendment, constitutional law professor, Derek W. Black considers what he believes are serious First Amendment violations of public school students’ and teachers’ rights by the Trump administration and some states. He suggests expanding the legal strategy to protect our democracy from what he considers is an attack on the public schools:
“Over the last two decades, the world has been experiencing a global assault on democracy—what scholars term democratic erosion… Though seemingly immune at first, the United States faces its own crisis… But one aspect of democratic erosion has gone unnoticed—historically anomalous attacks on public education. Most experts continue to view public education as a solution to, rather than a potential catalyst for, further democratic erosion in the United States… but their policy prescriptions suffer from a fundamental misunderstanding of the challenge confronting both democracy and education… Although public education has, in the words of the Court, helped ‘preserve’ the health of our ‘representative government’ for two centuries, recent attacks on public education are entwined with the forces… unraveling democracy… Scholars, however, have yet to notice that America’s public schools—the place where ‘most citizens’ first ‘experience the power of government’—are now plagued by strategies eerily reminiscent of autocratic behavior abroad.”
Citing Justice Robert Jackson’s 1943 decision in West Virginia v. Barnette, which protects the First Amendment free speech rights of students in public schools, Black explains: “The Court’s primary response has been to employ the First Amendment as a check on democratic abuse in schools, writing that, “no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” “The Court has made clear that neither students nor teachers ‘shed their constitutional rights to freedom of speech or expression at the schoolhouse gate’ and has warned that one of the greatest threats to democracy lies in invading students’ freedom of thought by forcing them to adopt state-sanctioned ideology.”
Demonstrating that public education has always been understood as essential for the operation of our democracy, Black examines the founders’ attention to the need for a strong system of public schools as defined in the Northwest Ordinances of 1785 and 1787. And later at the end of the Civil War, Congress required that, to reenter the Union, each state must insert into its constitution a clause protecting universal public education. Why has public schooling been seen as so important? “Close historical analysis reveals public education was designed to serve four specific purposes and safeguards for republican government: (1) preparing students for citizenship, (2) equipping citizens to preserve their individual rights and autonomy, (3) empowering people to resist tyranny, and (4) instilling a commitment to the common good.”
Black believes public attention and legal attention to these principles has eroded. “These purposes and safeguards represent the grounds on which the Court can evaluate the substance of education practices without inappropriately invading the province of educators or policymakers. When state and local officials transgress public education’s originating purposes, they operate beyond their constitutional authority and forfeit the deference the Court would normally afford.”
Black list three primary areas where one can observe the erosion of democracy: “(1) free and fair elections; (2) protection of the individual rights of free speech, free association and the press; and (3) fidelity to the rule of law.” Although what has been happening in the public schools during the second Trump administration is a classic example of Black’s second category—the erosion of the individual rights of free speech, Black emphasizes that most of us haven’t paid enough attention to the significance of what has been happening in the nation’s public schools:
“While scholars occasionally examine restrictions on academic freedom in higher education as an aspect of democratic erosion, the possibility that attacks on elementary and secondary public education are an aspect of democratic erosion has escaped their attention. Yet, assaults on public education may pose an even more serious threat to democracy. Particularly in the United States, public education serves broader societal functions than higher education…. First, as the largest government institution in the United States, public education is an obvious potential target of those aiming to undermine faith in government institutions. Public education is twice the size of the entire federal government. More important, it represents the most extensive and persistent relationship that citizens ever have with government. Public schools educate roughly ninety percent of Americans for more than a decade during their formative years. Second, public schools, like the judiciary and rule of law, normally operate above the normal political fray… Third, attacks on public education can achieve ends similar to media attacks and censorship: controlling access to information and filling information vacuums with propaganda.”
Black provides examples of widespread political initiatives attempting to use the public schools to undermine democracy: the 500 anti-Critical Race Theory bills introduced across 49 state legislatures; widespread demonization of public school teachers by politicians; attempts by powerful people like Betsy DeVos to invest their energy and their fortunes to discredit the public schools; efforts to “stoke populist, nationalist, ethnic and religious division,” as exemplified by President Trump’s 1776 Commission; state politicians granting charter school contracts to the Hillsdale College affiliated “classical” charter schools with a known ideological bias; and finally the Trump administration’s dogged efforts to end public schools’ policies and programs designed to overcome past inequality by expanding restorative justice, and “diversity, equity and inclusion.”
Black explains that, although “in 1943, in West Virginia v. Barnette, the Court held that the First Amendment protects the right to be free from compelled orthodoxy in public education… (t)he Court… has yet to reconcile its anti-orthodoxy concerns with the special role schools play in inculcating values—a role that also drives the Court’s education jurisprudence. In Brown v. Board of Education, the Court referred to public education as ‘a principal instrument in awakening the child to cultural values in preparing him for later professional training and in helping him to adjust normally to his environment.’ In other cases, the Court has lauded schools in ‘inculcating fundamental values necessary to the maintenance of a democratic political system’ and ‘society’ itself. This role has required the Court to straddle a careful line between stopping orthodoxy and allowing inculcation.”
Black continues: “Doctrines adapted to normal times are inept in the face of totalitarian behavior and orthodoxy. The solution lies not in restricting or curtailing schools’ authority to inculcate democratic values but in finally examining from whence that authority arises… Since the nation’s founding, Congress and states have used public education as the tool by which to reinforce our republican form of government and its constitutional values. This history and the norms embedded in state constitutional provisions represent the principles by which the Court can prohibit orthodoxy and coercion in public schools without imposing its own values.”
What are the values the courts ought to be citing as the reason for protecting freedom of speech in public schools? Black writes: “The first goal of public education is to prepare young people for citizenship and self-government… Second, the founders believed the legitimate exercise of governmental power rests on education… Third, public education was intended to protect individual liberty and autonomy… Fourth… education provides citizens the nonviolent means by which to resist tyranny… (and) finally public education is meant to bind a diverse and sometimes adverse population together.”
Black concludes: “After expanding and reinforcing democracy for two centuries, public education has fallen victim to the tactics that autocratic movements have used to accrue power across the globe. Absent a broader civic awakening or judicial intervention, public education may hasten the pace of democratic erosion rather than cure it. Some aspects of this erosion are beyond courts’ purview, but one is not: state officials, high and low, dictating what ideas shall be orthodox.”
This is a brief summary of an extremely important paper, Education, Orthodoxy, and the First Amendment, which is available online as a pdf. Derek W. Black is the Ernest F. Hollings Chair in Constitutional Law at the University of South Carolina School of Law. He is also the author of two important recent books: Schoolhouse Burning, and Dangerous Learning.