Why public education?

Do you really want public medicine to replace private options?  Or public housing?  Or public transportation?  Makes you think.  Why public education?  

If you have access to the WSJ, read the article in its entirety.

Is the Public School System Constitutional?

Education consists mostly in speech, and parents have a right under the First Amendment to exercise authority over what their children hear.

Wall Street Journal Opinion By Philip Hamburger. Oct. 22, 2021

Excerpts: 

The public school system weighs on parents. It burdens them not simply with poor teaching and discipline, but with political bias, hostility toward religion, and now even sexual and racial indoctrination. Schools often seek openly to shape the very identity of children. What can parents do about it?

Public education in America has always attempted to homogenize and mold the identity of children. Since its largely nativist beginnings around 1840, public education has been valued for corralling most of the poor and middle class into institutions where their religious and ethnic differences could be ironed out in pursuit of common “American” values.

The goal was not merely a shared civic culture. Well into the 20th century, much of the political support for public schooling was driven by a fear of Catholicism and an ambition to Protestantize Catholic children. Many Catholics and other minorities escaped the indoctrination of their children by sending them to private schools. 

Nativists found that intolerable. Beginning around 1920, they organized to force Catholic children into public education. The success of such a measure in Oregon (with Democratic votes and Ku Klux Klan leadership) prompted the Supreme Court to hold compulsory public education unconstitutional.

The case, Pierce v. Society of Sisters (1925), was brought by a religious school, not a parent. The justices therefore framed their ruling around the threat to the school’s economic rights. But Pierce says that parents can educate their children outside state schools in accord with the parents’ moral and religious views.

Although the exact nature of this parental freedom is much disputed, it is grounded in the First Amendment. When religious parents claim the freedom, religious liberty seems an especially strong foundation. But the freedom of parents in educating their children belongs to all parents, not only the faithful. Freedom of speech more completely explains this educational liberty.

Education consists mostly in speech to and with children. Parents enjoy freedom of speech in educating their children, whether at home or through private schooling. That is the principle underlying Pierce, and it illuminates our current conundrum.

The public school system, by design, pressures parents to substitute government educational speech for their own. Public education is a benefit tied to an unconstitutional condition. Parents get subsidized education on the condition that they accept government educational speech in lieu of home or private schooling.

When government makes education compulsory and offers it free of charge, it crowds out parental freedom in educational speech. The poorer the parents, the more profound the pressure—and that is by design. Nativists intended to pressure poor and middle-class parents into substituting government educational speech for their own, and their unconstitutional project largely succeeded.

These precedents concern only religion in public schools and the coercive effect on children under the Establishment Clause. But 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. And if public-school messages are so coercive against children, it is especially worrisome that parents are being pressured to adopt public educational speech in place of their own.

In their freedom, the 18th-century schools established a common culture. In contrast, public-school coercion has always stimulated division. It was long used to grind down the papalism of Catholic children into something more like Protestantism. Since then, there has been a shift in the beliefs that public schools seek to eradicate. But the schools remain a means by which some Americans force their beliefs on others. That’s why they are still a source of discord. The temptation to indoctrinate the children of others—to impose a common culture by coercion—is an obstacle to working out a genuine common culture.

There is no excuse for maintaining the nativist fiction that public schools are the glue that hold the nation together. They have become the focal point for all that is tearing the nation apart. However good some public schools may be, the system as a whole, being coercive, is a threat to our ability to find common ground. That is the opposite of a compelling government interest.

The public school system therefore is unconstitutional, at least as applied to parents who are pressured to abandon their own educational speech choices and instead adopt the government’s.

Mr. Hamburger teaches at Columbia Law School and is president of the New Civil Liberties Alliance.