The First Amendment and the Socialization of Children: Compulsory Public Education and Vouchers

Criticism of American public schools has been a cottage industry since the Nineteenth Century. In recent years the criticism has gone to the roots. Critics charge that to leave children imprisoned in the public school monopoly is to risk the standardization of our children; it is to socialize them in the preferred views of the State. They argue that it would be better to adopt a system of vouchers or private scholarships to support a multiplicity of private schools. A multiplicity of such schools, it is said, would enhance parental choice, would foster competition, and would promote a diversity of views, which in turn would bring the kind of independent perspective needed for the sort of robust private and public debate needed in our constitutional democracy. Arguments such as these are ordinarily associated with conservatives; but they are also attractive to some liberals, particularly to those concerned about the state of public education in many of the central cities. The debate about public and private education raises important questions about the role of the state in promoting a certain kind of person and citizen, which has implications for liberal and democratic theory, the respective rights of children and parents, and the nature of religious freedom in a democratic society. In addressing these issues, I will argue that the debate about compulsory public education has been oversimplified. Too often the argument has been that compulsory public education is always unconstitutional or, less frequently, that it is always constitutional. Similarly, much of the debate about vouchers contends that they are always good or always bad or that vouchers to religious schools either always do or always do not violate the Establishment Clause. I will argue that the interests of children and the state in public education have been underestimated and that government should in many circumstances be able to compel adolescents of high school age, but not pre-adolescents, to attend public schools. No U.S. government is likely to engage in such compulsion, and there are good political reasons not to do so, but analysis of the case for compulsory public education leads to support of a strong presumption against vouchers, at least at the high school level. This presumption, however, is more difficult to defend when public schools are relatively homogeneous or are providing inadequate education to poor children. Even if vouchers could generally be supported, vouchers to religious schools raise serious concerns about the appropriate principles of church-state relations in the American constitutional order. But these concerns might be overcome in certain circumstances. In short, I argue that compulsory public education is sometimes constitutional and sometimes not, that vouchers are generally to be resisted, but sometimes not, and that vouchers to religious schools should ordinarily be considered unconstitutional, but sometimes not. In making these arguments, I do not purport to make claims about what the Rehnquist Court would do; to the contrary, I make arguments about how the Constitution should be interpreted. Part I of this essay criticizes the reasoning in Pierce v. Society of Sisters, the first case to consider compulsory public education. Part II presents the strong purposes supporting public education, weighs those interests against the claim that parents have the right to direct the upbringing and education of their children, and concludes that compulsory public high school education should be constitutional in many circumstances; although, it posits that parents should have the right to send their children to private schools in the years prior to high school. Part III argues that the same conclusions follow in the face of First Amendment speech, association, and religion claims, but that they might be vulnerable in some circumstances against a claim for a right to a good education. Part IV argues that vouchers should not be constitutionally required even if it is conceded that parents have a constitutional right to send their children to private schools in the pre-high school years and that serious Establishment Clause concerns arise in the context of vouchers, concerns that should be overcome only in limited circumstances. Finally, Part V contains a brief conclusion

Defamatory Non-Media Speech and First Amendment Methodology

In the course of his eloquent commentary upon New York Times Co. v. Sullivan, the late Professor Kalven enthused that the Court had written an opinion that may prove to be the best and most important it has ever produced in the realm of freedom of speech. This excitement was generated not by the Court\u27s rather narrow holding but rather by the hope that Sullivan would serve as the opening wedge to dislodge the clear and present danger test, to dismantle the two-level approach to first amendment analysis (reflected in cases such as Chaplinsky, Beauharnais, and Roth), and instead to rest free speech theory on the idea that the first amendment is centrally concerned with the protection of speech relating to self-government. From that premise, Kalven thought the inclination to protect all speech in the public domain would prove to be overwhelming. Professor Kalven\u27s hopes have not been realized. It is now clear that a variant of the clear and present danger test is solidly entrenched in a portion of the Court\u27s first amendment theory and that the two-level approach to first amendment analysis is alive and well. Moreover, recent commentary by Justice Stewart and the Court\u27s opinion in Gertz v. Robert Welch, Inc. suggest that Sullivan may be regarded as having nothing to do with free speech theory. Rather it may be described as a free press case and its principles are to be applied (at least insofar as the scope of first amendment protection is concerned) whether or not the communication is considered to be of public interest or relevant to self-government. Such developments make it appropriate to consider whether media communications should be accorded a greater level of protection than non-media communications, whether defamatory speech unrelated to public issues ( non-public or private speech) is or should be protected under the first amendment, and whether there is a central meaning of the first amendment under prevailing Supreme Court doctrine. These comments should suffice to introduce the three major themes of this paper: First, media communications should be afforded no greater protection than non-media communications; second, defamatory non-public speech has been undervalued in first amendment theory; and third, the attempt to identify a category of speech deemed to be centrally protected under the first amendment is ill advised. Thus, first amendment methodology is explainable not in terms of self-government or absolutism (nor in terms of definitional or ad hoc balancing); instead first amendment methodology is rooted in general balancing principles which sometimes counsel ad hoc approaches and other times dictate rules of general application. Before addressing these contentions directly, it is necessary to discuss Professor Kalven\u27s hopes, Justice Stewart\u27s perspective, and some of the Court\u27s observations with respect to these issues

Defamatory Non-Media Speech and First Amendment Methodology

In the course of his eloquent commentary upon New York Times Co. v. Sullivan, the late Professor Kalven enthused that the Court had written an opinion that may prove to be the best and most important it has ever produced in the realm of freedom of speech. This excitement was generated not by the Court\u27s rather narrow holding but rather by the hope that Sullivan would serve as the opening wedge to dislodge the clear and present danger test, to dismantle the two-level approach to first amendment analysis (reflected in cases such as Chaplinsky, Beauharnais, and Roth), and instead to rest free speech theory on the idea that the first amendment is centrally concerned with the protection of speech relating to self-government. From that premise, Kalven thought the inclination to protect all speech in the public domain would prove to be overwhelming. Professor Kalven\u27s hopes have not been realized. It is now clear that a variant of the clear and present danger test is solidly entrenched in a portion of the Court\u27s first amendment theory and that the two-level approach to first amendment analysis is alive and well. Moreover, recent commentary by Justice Stewart and the Court\u27s opinion in Gertz v. Robert Welch, Inc. suggest that Sullivan may be regarded as having nothing to do with free speech theory. Rather it may be described as a free press case and its principles are to be applied (at least insofar as the scope of first amendment protection is concerned) whether or not the communication is considered to be of public interest or relevant to self-government. Such developments make it appropriate to consider whether media communications should be accorded a greater level of protection than non-media communications, whether defamatory speech unrelated to public issues ( non-public or private speech) is or should be protected under the first amendment, and whether there is a central meaning of the first amendment under prevailing Supreme Court doctrine. These comments should suffice to introduce the three major themes of this paper: First, media communications should be afforded no greater protection than non-media communications; second, defamatory non-public speech has been undervalued in first amendment theory; and third, the attempt to identify a category of speech deemed to be centrally protected under the first amendment is ill advised. Thus, first amendment methodology is explainable not in terms of self-government or absolutism (nor in terms of definitional or ad hoc balancing); instead first amendment methodology is rooted in general balancing principles which sometimes counsel ad hoc approaches and other times dictate rules of general application. Before addressing these contentions directly, it is necessary to discuss Professor Kalven\u27s hopes, Justice Stewart\u27s perspective, and some of the Court\u27s observations with respect to these issues

Liberalism and the Establishment Clause

Every political theory tolerates some things and not others. Every political theory promotes a particular kind of person even if it denies it is doing so. But the best liberalism does not confine itself to promoting a Rawlsian-tolerant citizen. Liberalism, like conservatism, has greater ambitions in the socialization of the young. The best liberalism, a neo-Millian liberalism, promotes a creative, independent, autonomous, engaged citizen and human being who works with others to make for a better society and speaks out against unjust customs, habits, institutions, traditions, hierarchies, and authorities. Although government may promote a particular conception of the good life, in the overwhelming majority of cases, government does not purport to enter into the question of what God has to say. When government acts, it does so for civic reasons, not because God has something to say about the subject. These actions do not deny the existence of God or that God has something to say about the subjects in question. For many, the Establishment Clause is the price of religious peace. For others, it is necessary to protect religions from demagogic politicians, and for others still it protects religious liberty. These reasons are consistent with religious belief, but they, and other reasons supporting the Establishment Clause, need not be accompanied by religious belief. In the end, however, the Establishment Clause for the most part requires that the question of what God has to say must be bracketed from the governmental agenda

Hate Speech, Legitimacy, and the Foundational Principles of Government

Part of Symposium: Hate Speech and Political Legitimac