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No, the Public School System Is Not Unconstitutional

What Philip Hamburger’s strange argument reveals about recent shifts in conservatism.
October 26, 2021
No, the Public School System Is Not Unconstitutional
(Photos: GettyImages / Shutterstock)

What should parents do if they’re angry about what’s happening at their children’s public school? One prominent judge has not been shy in his views. “They can seek redress in school boards or legislatures,” he has written. “They can send their children to private schools or homeschool them; or they can simply move.” Whatever the schools are doing, it “can be challenged by parents in the political process.”

The judge in question is none other than Clarence Thomas, one of the most conservative Supreme Court justices of the last hundred years. He was writing in Morse v. Frederick (2007)—the immortal “BONG HiTS 4 JESUS” case—about what limits a school may place on students’ speech. His advice presumably would remain sound in a case about what topics a school may place in its curriculum. Indeed, in that same opinion Thomas wrote that “local school boards, not the courts, should determine what pedagogical interests are ‘legitimate.’”

Conservative legal scholar Philip Hamburger begs to differ. Over the weekend, Hamburger—known for questioning the legitimacy of the administrative state, as well as for founding and leading the New Civil Liberties Alliance, an advocacy group that hired (and appears recently to have fired) Trump coup maestro Jeffrey Clark—argued in a Wall Street Journal op-ed that “the public school system” is “unconstitutional.”

“Parents enjoy freedom of speech in educating their children,” Hamburger reasons. “The public school system,” in turn, “pressures parents to substitute government educational speech for their own.” That “pressure,” according to Hamburger, is high—“nearly irresistible.” And the speech employed by the schools, in Hamburger’s view, is rotten; it’s shot through with “political bias, hostility toward religion, and now even sexual and racial indoctrination.” Therefore “the current system is profoundly unconstitutional.” QED.

Hamburger needs some big leaps of logic to reach such a startling conclusion. Even more remarkable than his errant path and his strange destination, however, is Hamburger’s willingness to abandon conservative legal principles at each step along the way.

Take his claim that public education aims to “homogenize and mold the identity of children.” Hamburger says this by way of complaint. Public schools try to “impose a common culture by coercion.” The whole endeavor “reeks of prejudice and indoctrination.” Speaking on the same subject in Morse, by contrast, Justice Thomas could hardly suppress his admiration. “In the earliest public schools,” Thomas observed, “teachers taught, and students listened. Teachers commanded, and students obeyed.” Thus did the earliest public schools instill “a core of common values.” Thomas even quoted with approval a law professor’s lament for a past America, a “society that generally respected the authority of teachers, deferred to their judgment, and trusted them to act in the best interest of school children.”

Consider too Hamburger’s appeal to “a long line of Establishment Clause decisions” that “recognize the risk of coercion in public-school messages.” Those decisions, Hamburger says, attest to the “vulnerability of children to indoctrination.” But conservatives hate those cases. As Judge Richard Posner once explained, “The case law that the Supreme Court has heaped on the defenseless text of the establishment clause is widely acknowledged, even by some Supreme Court Justices, to be formless, unanchored, subjective and provide no guidance.” When called on to determine which school-sponsored acts or events qualify as an “endorsement” of religion, the justices have taken to asking whether an act or event imposes a sense of “psychological coercion” on non-religious students. Justice Antonin Scalia—the most prominent conservative justice of the last half century—railed against this test. He protested that it has “no roots whatever” in the Constitution, is “as infinitely expandable as the reasons for psychotherapy itself,” and takes the court “beyond the realm where judges know what they are doing.” A test to determine when children are “coerced” by the “political, racial, sexual and antireligious speech” Hamburger so fears would be no different.

Then there is Hamburger’s fixation on anti-Catholic nativists. Protestant bigots, Hamburger explains, were strong proponents of public schools, starting in the 1840s and well into the twentieth century. This sordid past, Hamburger repeatedly insists, taints the public school system down to the present day. If you support public education, you’re probably just in thrall to “the nativist fiction that public schools are the glue that hold the nation together.” If Hamburger’s theory were to fail in court, in fact, it’d likely be because so many judges have “assimilated the nativist ideal that public education is a central and compelling government interest.”

Here Hamburger ditches conservative principles twice over. First, having earlier worried about “racial indoctrination” (read: critical race theory), he now employs the woke tactic of contending that the sins of the past remain a dominant force in the present. The “origins” and “history” of a law, Justice Samuel Alito—another rock-ribbed conservative—argued recently, matter only if there are “no legitimate reasons why anyone might think” the law “is good policy” today. Trying to chain modern proponents of public schools to the nativists of the past, instead of addressing their arguments directly, is, by Alito’s way of thinking, a retreat to “ad hominem rhetoric” that is “entirely out of place” in a debate about a law’s constitutionality.

Second, conservatives have historically considered appeals to false consciousness a cheap rhetorical trick of the left (as it is). Justice Felix Frankfurter was a Jewish progressive, yet he was certain that the First Amendment did not protect Jehovah’s Witness schoolchildren from being forced to salute the American flag. Justice Pierce Butler, a Catholic, criticized students for “seeking education offered by the state and at the same time insisting that they be excluded from the prescribed course solely upon grounds of their religious beliefs.” The Founding Father Benjamin Rush wanted public schools that would transform “the natives of so many different kingdoms in Europe” into a people more fit “for uniform and peaceable government.” The legal scholar Cass Sunstein understands that public schools may have been “created because of antipathy to Catholics,” yet he still thinks that public schools are constitutional, in part because they can “foster the development of an integrated national or state polity.” Which of these men get to speak for themselves, and which must we dismiss as having been duped by “the nativist fiction”?

Hamburger’s legal argument revolves around the concept of “unconstitutional conditions.” The government, Hamburger argues, may not “condition” the receipt of “subsidized education” on parents’ willingness to “accept government educational speech in lieu of home or private schooling.”

The rules that define and govern “unconstitutional conditions” are clear in some areas, murky in many others. Few standards have been set at the particularly delicate intersection of government speech, student rights, parental rights, and civic education—which allows Hamburger to try to make things up as he goes along. He declares, for instance, that the state must show that it has a “compelling interest in public education.” Because parents can opt out of public schooling, a court would likely apply a lower bar. At any rate, the root questions are three:

Are public schools in fact “nearly irresistible”?

Is what’s taught in them in fact “coercive”?

And are the values underlying them really a “fiction”?

Judging from how well private and parochial schools and the homeschooling movement are doing, the answer to the first question is clearly “no.” Hamburger’s arguments for answering “yes” to the second and third questions, meanwhile, stand on so much bare assertion. This is not entirely his fault, since those questions stand on personal judgments and other imponderables. But that he feels compelled preemptively to dismiss as having “assimilated” a “nativist ideal” anyone who thinks public schools might benefit the nation—whether by creating good citizens, or instilling common values, or breaking down barriers of class and race, or otherwise—is not a vote of confidence in the merits of his own case.

Here again, moreover, Hamburger is willing to use any stick to beat a dog. “Unconstitutional conditions” is another conservative bugbear. “The First Amendment does not mandate a viewpoint-neutral government,” Justice Scalia wrote, in a dissent joined by Justice Thomas, and the state may “choose between rival ideas and adopt some as its own.” If the government’s choices inconvenience some citizens, too bad: “Not every disadvantage is a coercion.” It’s a pity Scalia never got to hear of Hamburger’s alarm at the “risk of coercion in public-school messages.” He’d likely have responded with the same sort of mockery he heaped on what he witheringly called the “psycho-coercion” test for the Establishment Clause. A conservative scholar aping the woke attitude that “bad” speech is a species of “violence” would be asking for it.

Things get weird when Hamburger asserts that “the shared civic culture of 18th-century America was highly civilized,” and that that culture “developed entirely in private schools.” Are we to take this as a half-hearted stab at giving an originalist bent to the constitutional case against public schools? Or perhaps it’s a glimpse of what Hamburger thinks children should be taught, which is to say, the fiction—one might even say the “nativist fiction”—that the eighteenth century was especially civilized?

There’s a strong whiff of projection in the attempt to tie public schools’ modern defenders to those who once pushed “nativist” public school curricula. The flag salute Frankfurter defended, for example, came attached to a set of state-mandated courses imposed “for the purpose of teaching, fostering and perpetuating the ideals, principles and spirit”—and, of course, myths—“of Americanism.” In Hamburger’s view, too many public schools have adopted new ideals, new principles, and a new spirit (and, of course, new myths). The parents who want public schools to adhere to the old ideals, principles, and spirit—those in favor of “Americanism”—now feel intensely alienated. And it is those parents who, if Hamburger’s article is any indication, now want to take their ball and go home.

That it’s the (true) heirs of the nativists who want out of public schools—and mainstream culture more broadly—is a profound turn of events. It is an indication of the broader shift in American conservatism away from seeking to “conserve” values that underpin (or that can plausibly be imagined to underpin) the proper functioning of society.

What conservatism is shifting toward remains unsettled. Look at conservatives’ increasingly confused attitudes about free speech. Do conservatives want to expand freedom of expression to more forms of conduct—to the refusal to wear a mask, for instance? Or do they want to restrict it to fewer, until the First Amendment covers little more than pure speech? Do they still celebrate Citizens United v. FEC (2010) and corporate free speech? Or do they want to restrict the speech rights of “Big Tech” and “woke capitalism”? Hamburger’s position is of a piece with this broader confusion.

But what is clear is that the conservative shift has contributed to the deterioration of the traditionally conservative vision of citizenship itself. Don’t like an election outcome? Claim it was stolen. Don’t like a politician? Threaten him with violence. Don’t like your local public school? Cry to the courts about the legality of the whole system. Hamburger is not wrong that the public school system is riddled with problems. But his complaint about its supposed unconstitutionality is the weakest possible line of criticism. Nor is Hamburger wrong in thinking that some Americans might benefit from spending more time reflecting on civic values. The problem is his certainty about which Americans most need to reflect, and about which values they need to reflect on.

With apologies to Justice Scalia, rightwing parents remain entirely free to épater les bourgeois. They can merely be deprived of the additional satisfaction of having the bourgeoisie taxed to pay for it.

Corbin Barthold

Corbin Barthold is internet policy counsel at TechFreedom. Twitter: @corbinkbarthold.