Harold Meyerson of The American Prospect warns that Senator Joe Manchin of West Virginia and Senator Krysten Sinema of Arizona threaten the fate of their party in 2022 by their stubborn opposition to President Biden’s ambitious $3.5 trillion budget plan (over ten years). In addition to rebuilding the nation’s highways, bridges, tunnels, and other parts of its essential infrastructure, Biden wants to lessen the nation’s dependence on fossil fuels and combat climate change. His proposal would expand Medicare and Medicare and lower the cost of prescription drugs. It would provide child care credits that would lift millions out of poverty. The plan would make two years of community college free. Republicans oppose everything in his plan, even though it would bring economic relief and jobs to their constituents. Manchin and Sinema have forced their party to drop major parts of the plan and have thus far opposed raising revenue to fund it.
Meyerson writes:
I’m not aware of any poll that has asked the question “Do you think President Biden is being jerked around by two senators?” but I think a large number of Americans, if asked, would answer that in the affirmative. Of course, it’s not just Biden but the entire Democratic Party, root and branch, that’s being jerked around by Sens. Manchin and Sinema—and it’s the entire Democratic Party that will likely pay a price for this in next year’s midterm elections.
We’ve been here before. During the initial two years of his presidency, Barack Obama engaged in what seemed at the time like an endless succession of negotiations with Republicans and centrist Democratic senators over his proposed Affordable Care Act. In the end, the Republicans flatly rejected it in any way, shape, or form, but perhaps even more nettlesome was the determination on the part of two Democratic senators in particular—Finance Committee Chair Max Baucus of Montana and Connecticut’s Joe Lieberman—to pare back the bill. And pared it was, with Obama and his fellow Democrats forced to bow to Baucus and Lieberman’s demand to scuttle the establishment of a public option that could compete with profit-driven, coverage-denying private health insurance corporations.
As I’ve written in the current print issue of the Prospect, time plays a crucial role in the public’s assessment of elected officials and their programs. A program that’s slow to roll out and slow to deliver its benefits to the public doesn’t usually benefit its authors in the election following its enactment. Similarly, a president who proclaims a bold program, only to spend months being compelled to hack away at it due to the obstinate resistance of a handful of legislators who have the upper hand in the proceedings, doesn’t emerge unscathed from that process. Obama surely didn’t, though his inability to persuade some nominally Democratic renegades to support the public good over their insurance industry donors was only one reason why the Democrats bombed in the 2010 midterms, losing both houses of Congress in the process.
My concern is that Joe Biden is trapped in the same dynamic that plagued Obama, with his polling dropping precipitously as the two Democratic renegades, similarly more in the sway of donors (and innumerate economics) than the public interest, are prevailing over the president and the rest of the party in paring back a long-overdue shift to bolstering the fortunes of most Americans. Indeed, Biden has publicly stated that with only 50 Democrats in the Senate, just one senator—or in this case, two—effectively has presidential powers. What with Manchin compelling his fellow Democrats to halve their proposals (or, if he won’t budge from $1.5 trillion, cut them to three-sevenths), and Sinema rejecting an increase to tax rates on the wealthy and corporations, they’ve clearly diminished the appearance and actuality of Biden’s power, whether that’s their intention or not.
To be sure, there are other factors behind the erosion of Biden’s public support, as there was with Obama’s, and there’s a distinct possibility that when the infrastructure and Build Back Better bills are finally passed, and their programs promptly (one hopes) implemented, Biden will rebound. But just as Baucus and Lieberman played a role in dragging Obama down and giving the Congress over to the Republicans, so Manchin and Sinema seem poised to have a kindred effect over the fortunes of Biden and their congressional colleagues.
Anand Giridharadas interviewed Senator Ron Wyden of Oregon, who is sponsoring a ”billionaires’ tax,” which would tax assets, not just income. This tax on the growth in their assets would affect between 600-700 billionaires. The revenue from the billionaires’ tax would pay for a large part of President Biden’s proposed budget plan. Two members of the Democratic Party—Senator Joe Manchin of West Virginia and Senator Kyrsten Sinema of Arizona—have blocked the bill, objecting to its cost and to raising taxes to pay for it. Republicans will unanimously oppose it, so Biden can’t afford to lose even one vote. The discussion has gone on for months, and the Republicans hope to stall and stall, then win enough seats a year from now to destroy Biden’s plans and his presidency.
In another interview, Anand talks with Berkeley economist Gabriel Zucman, who explains how the wealth tax would work. In a fascinating overview, he says the tax would affect fewer than 1,000 people: it’s the most progressive tax possible, targeted at the tippy top. It’s also technically different from a wealth tax in that it does not tax wealth itself, but the increase in wealth — what economists call unrealized capital gains.
To get an idea of who will pay the tax, scan Bloomberg’s Billionaires Index. Elon Musk is #1, with more than $200 billion. Jeff Bezos is #2.
If The.Ink interviews are behind a paywall, you should subscribe. Anand is consistently interesting.
ANAND: Is the wealth tax on? Is this in the final package? Is this thing happening?
SENATOR WYDEN: We’re pulling out all the stops. Tonight we’re going to start talking about it in more detail. I have been unable to see even one senator getting up and actually saying, “Gee, I think it’s OK that billionaires are not paying any taxes for years on end.”
What the opponents are trying to do, because they aren’t willing to get up and actually act like they’re sympathetic to billionaires, they’re running the old FUD strategy — fear, uncertainty and doubt. If you can just throw enough FUD at it, then senators say, “Oh, gee, I really don’t know.”
ANAND: I’m hearing from a lot of people that Senators Joe Manchin and Kyrsten Sinema, who have resisted even modest tax increases on corporations and rich people, that they’re with you on this. I’m curious: How did they get behind an unprecedented and historic wealth tax instead of relatively more modest ideas?
SENATOR WYDEN: Well, first of all, we’re calling this the “billionaires’ income tax,” so that people know that billionaires should pay taxes every year, just the way nurses and firefighters are.
All of the members are still making up their minds and saying we want to know more information about this and that, but around here, everything is always impossible until 15 minutes before it comes together — and particularly when you’re taking on such enormous, concentrated power. Billionaires know lots and lots of United States senators.
Editor’s Note (me): After Anand published this interview, and after Senator Wyden released his bill, Senator Manchin said he was not likely to support it because it targets such a small and specific number of people. It’s “divisive,” he said, to single out billionaires. When you don’t want to do something (like tax billionaires), any excuse will do.
Jack Schneider and Jennifer Berkshire are co-authors of A Wolf at the Schoolhouse Door: The Dismantling of Public Education and the Future of School. It is a book that everyone should read. They recently wrote an article that was posted in Valerie Strauss’s “Answer Sheet” blog at the Washington Post.
They write:
In their search for issues that will deliver Congress in 2022, conservatives have begun to circle around the cause of “parents’ rights.” In Indiana, Republican Attorney General Todd Rokita recently introduced a Parents Bill of Rights, which asserts that “education policy and curriculum should accurately reflect the values of Indiana families.” In Florida, the legislature passed an even more comprehensive bill, assuring that the state and its public schools cannot infringe on the “fundamental rights” of parents. A growing number of states are allowing parents to sue districts that teach banned concepts. And in Virginia, Republican Glenn Youngkin has made parents’ rights a centerpiece of his campaign for governor, staging “parents matter” rallies and declaring, “I believe parents should be in charge of their kids’ education.”
Given this frenzy, one might reasonably conclude that radicals are out to curtail the established rights that Americans have over the educational sphere. Yet what’s actually radical here is the assertion of parental powers that have never previously existed. This is not to say that parents should have no influence over how their children are taught. But common law and case law in the United States have long supported the idea that education should prepare young people to think for themselves, even if that runs counter to the wishes of parents. In the words of legal scholar Jeff Shulman, “This effort may well divide child from parent, not because socialist educators want to indoctrinate children, but because learning to think for oneself is what children do.”
When do the interests of parents and children diverge? Generally, it occurs when a parent’s desire to inculcate a particular worldview denies the child exposure to other ideas and values that an independent young person might wish to embrace or at least entertain. To turn over all decisions to parents, then, would risk inhibiting the ability of young people to think independently. As the political scientist Rob Reich has argued, “Minimal autonomy requires, especially for its civic importance, that a child be able to examine his or her own political values and beliefs, and those of others, with a critical eye.” If we value that end, “the structure of schooling cannot simply replicate in every particularity the values and beliefs of a child’s home.”
The law has long reflected this. Consider home schooling. Although it is legal across the country, states still regulate its practice. Such regulations often aren’t enforced, but they are certainly on the books. Home-schooling parents can be required to establish minimal academic qualifications, to submit examples of student work to school district administrators or even to adopt a state-approved curriculum. As the Supreme Court noted in Wisconsin v. Yoder, a case that granted Amish parents the widest possible exemption from state control, “There is no doubt as to the power of a State, having a high responsibility for education of its citizens, to impose reasonable regulations for the control and duration of basic education.” And, as the court made clear in an earlier case, Pierce v. Society of Sisters, the state concerns itself not just with the well-being of the child but also with what the justices broadly called “the public welfare.”
The sudden push for parental rights, then, isn’t a response to substantive changes in education or the law. It’s a political tactic.
Writing in the 1960s, historian Richard Hofstadter observed that conservatives felt that the country had been “taken away from them and their kind” and that timeworn American virtues had been “eaten away by cosmopolitans and intellectuals.” In response, they took up what he called the “paranoid style” — an approach to politics characterized by “heated exaggeration, suspiciousness, and conspiratorial fantasy.” Published more than half a century ago, his essay could have been penned yesterday.
The “paranoid style” of politics is particularly useful as a mechanism for organizing opposition. And the Republicans employing it right now have two particular targets in mind. The first is the public education system, which hard-liners have long sought to undermine. At an annual cost of nearly three-quarters of a trillion dollars, tuition-free, open-enrollment education represents one of the nation’s most substantial commitments to the public good. But well before Ronald Reagan’s failed effort to introduce vouchers in the 1980s, conservatives were making the case for a privatized system — one in which families, not taxpayers, would bear the cost of education, and governance would happen through the free market rather than democratic politics. In recent years, this vision has come roaring back. Conservative legislatures across the United States have introduced bills creating education savings accounts, private-school tuition tax credits and other forms of neo-vouchers that package old ideological wine in new bottles.
But this play is much bigger than education. For years, the Republican Party has understood that the demographic tide is against it. Knowing that every vote matters, the GOP has increasingly relied on a strategy of voter suppression. Simultaneously, Republicans have worked to ensure that their base turns out in force by stoking White racial grievance. The recent firestorm over critical race theory is a perfect case in point. Never mind that this concept from legal scholarship isn’t actually taught in K-12 schools or that it isn’t what most protesters believe it to be. Republicans gain an electoral advantage by convincing their base that White children are being taught to hate themselves, their families and their country. Whether this supposed attack on the American way of life is being coordinated by Black Lives Matter activists, Marxist educators or antifa operatives, the point, as Hofstadter observed, is to generate an enemy “thought of as being totally evil and totally unappeasable.”
Courts have found that parents have great authority when it comes to deciding how to raise and educate their children. This right, however, does not mean that public schools must cater to parents’ individual ideas about education. Parents can opt out of the public system if they wish, and pay to send their children to private or religious schools. But even there, parental rights remain subject to state regulation and override.
In framing our public schools as extremist organizations that undermine the prerogatives of families, conservatives are bringing napalm to the fight. That may rally the base and tilt a few elections in their favor. But as with any scorched-earth campaign, the costs of this conflict will be borne long after the fighting stops. Parents may end up with a new set of “rights” only to discover that they have lost something even more fundamental in the process. Turned against their schools and their democracy, they may wake from their conspiratorial fantasies to find a pile of rubble and a heap of ashes.
A wave of labor activism is underway. Amazon workers in Staten Island in New York City are trying to organizing a union. Bloomberg News reports:
Deere & Co. employees, who launched a 10,000-person strike Oct. 14, cited the mandatory overtime that can stretch their shifts to 12 hours. At Kellogg Co., the union went on strike this month after decrying the toll of seven-day workweeks that had kept cereal flowing to stuck-at-home customers during the pandemic. And at Frito-Lay Inc., workers have this year challenged what they called“suicide shifts”: being made to leave late and return early, with only eight hours of turnaround time in between.
Scranton teachers announced their decision to strike on November 3.
SCRANTON, Pa.—The Scranton Federation of Teachers, which represents more than 800 teachers and paraprofessionals, announced today that it will set up picket lines and go on strike at 12:01 a.m., Nov. 3. The union has been working under a contract that expired in 2017.
“We’ve reached the end of the line and our patience with the Scranton School District. The district has refused to address our concerns about the slash-and-burn budget cuts that are significantly affecting the quality of education,” said Scranton Federation of Teachers President Rosemary Boland. “Strikes are always the last resort. We held off for many months, hoping, in vain, we could agree on conditions that are good for kids and provide decency, fairness, respect and trust for our educators.”
Boland expressed optimism that new members will be elected to the Scranton School Board on Nov. 2 and that the needs of students and educators finally will be prioritized.
SFT gave the district more than the required 48 hours’ notice before starting a strike. Picket lines will begin early Wednesday morning on Nov. 3 at most schools.
Teachers and paraprofessionals want realistic solutions to reversing the teacher turnover crisis; raising educator pay that has been frozen since 2016; returning Scranton’s esteemed and essential preschool program; and restoring libraries, bus routes and electives such as consumer[LBC1] science and music.
The austerity budget that is starving Scranton classrooms of the necessary resources, coupled with the administration’s disrespect for teachers, are issues reminiscent of what led to the walkouts in West Virginia, Oklahoma, Arizona, Colorado and Chicago in 2018 and 2019, SFT said.
“Teachers and paraprofessionals don’t want to walk out, but they will when their students’ needs are ignored and schools are starved of resources,” Boland said.
Scranton public schools are operating under a state Recovery Plan, which is akin to a state takeover.
“The Recovery Plan prioritizes financial recovery over student achievement, balancing the budget on the backs of students. Yet the plan has not been amended to factor in the $60 million in federal aid that should be used to stabilize the district and pay teachers decent, competitive wages,” she said, noting that the Recovery Plan originally factored in the use of “windfall funds,” such as federal aid when defining “recovery.”
“Since the recovery plan began in 2019, more than 100 teachers and paras have left the district, demonstrating a serious recruitment and retention problem that has harmful ramifications for students,” she said. Classes are severely overcrowded. Special education students are not being served adequately because teachers are pulled into other classrooms. Students aren’t getting individualized attention. In the COVID-19 environment, overcrowded classrooms pose a health hazard.
Boland said teachers and paraprofessionals deserve a pay raise. Teachers have not received a raise for more than four years, which has prompted many of the teacher defections to other school districts. Several paraprofessionals were furloughed, only to be brought back at a lower salary after public outrage. The district also is insistent on an inferior health scheme that would directly impact the Scranton community, as they are still dealing with the impact of COVID-19, the union said.
“It’s time for a contract that’s good for students and fair to educators,” Boland said.
School boards across the nation have complained about members of the public who create chaos at school board meetings: screaming, threatening violence, disrupting the proceedings. The National School Boards Association lodged a complaint with Attorney General Merrick Garland, asking for an investigation.
A large group of prominent rightwingers sent out a notice to parents and other allies, urging them to attend school board meetings. The leading voice who signed the letter is 89-year-old Ed Meese, former attorney general for Ronald Reagan.
Their letter begins:
Conservatives are deeply disturbed by the efforts of the Department of Justice to criminalize parental dissent at school board meetings. This is a dangerous and anti-democratic attempt at intimidation that should be vigorously opposed.
The DOJ has recently announced it will direct the FBI to investigate “threats of violence” at school board meetings. The announcement came just days after the National School Boards Association urged the Biden administration to invoke the Patriot Act against concerned parents, as they might be engaged in “domestic terrorism.”
This level of outright authoritarianism must be opposed. Parents not only pay for the instruction taking place in public schools, but as parents, have the right to know how and in what manner their children are being instructed. Those expressions of disagreement and demands for accountability are not only appropriate in a democratic society, but protected under the Constitution.
If Attorney General Merrick Garland and the Biden administration are going to make it their business to ban, demean, and belittle parents and citizens for engaging in protected speech in the institutions funded by their tax dollars, the response from concerned parents must be more speech, not less.
A month ago, the National School Boards Association wrote a letter to President Biden, asking for help on behalf of local school boards that were under attack and subject to threats by groups angry about masking and critical race theory.
The letter said, in part,
America’s public schools and its education leaders are under an immediate threat. The National School Boards Association (NSBA) respectfully asks for federal law enforcement and other assistance to deal with the growing number of threats of violence and acts of intimidation occurring across the nation. Local school board members want to hear from their communities on important issues and that must be at the forefront of good school board governance and promotion of free speech. However, there also must be safeguards in place to protect public schools and dedicated education leaders as they do their jobs.
NSBA believes immediate assistance is required to protect our students, school board members, and educators who are susceptible to acts of violence affecting interstate commerce because of threats to their districts, families, and personal safety. As our school boards continue coronavirus recovery operations within their respective districts, they are also persevering against other challenges that could impede this progress in a number of communities. Coupled with attacks against school board members and educators for approving policies for masks to protect the health and safety of students and school employees, many public school officials are also facing physical threats because of propaganda purporting the false inclusion of critical race theory within classroom instruction and curricula.1 This propaganda continues despite the fact that critical race theory is not taught in public schools and remains a complex law school and graduate school subject well beyond the scope of a K-12 class…
As these acts of malice, violence, and threats against public school officials have increased, the classification of these heinous actions could be the equivalent to a form of domestic terrorism and hate crimes.
Bianca Quilantan of Politico reported that the NSBA has now apologized for the letter and withdrawn it in response to the actions of a group called “Parents Defending Education.”
About a month after the association sent its initial plea letter to the Biden administration, the NSBA has faced outrage on all sides — from its members, state attorneys general, lawmakers and parent advocacy groups. These critics say the involvement of the FBI in school board meetings would chill parents’ free speech. “The NSBA seems more concerned about suppressing speech with which it disagrees than real threats of violence,” more than a dozen attorneys general wrote.
— Nicole Neily, president of Parents Defending Education, a group “working to reclaim our schools from activists imposing harmful agendas,” said her group has emailed 47 state school board associations for comment on the NSBA’s Sept. 29 letter. Neily said 19 have distanced themselves from the group’s letter, and many state school boards said they had not been made aware of the NSBA’s request ahead of time.
— “On behalf of NSBA, we regret and apologize for the letter,” a memo from NSBA’s board to its members said. “There was no justification for some of the language included in the letter. We should have had a better process in place to allow for consultation on a communication of this significance. We apologize also for the strain and stress this situation has caused you and your organizations.”
Parents Defending Education is a rightwing group fighting ”indoctrination” in the schools. Its president formerly worked at the Cato Institute and Independent Women’s Forum.
Before the NSBA withdrew its letter, Anya Kamenetz of NPR wrote about the groups that have organized to harass local school boards. In several states and districts around the country, protestors have been disrupting school board meetings. They’re opposed to mask policies. Vaccine mandates. LGBTQ rights. Sex education. Removing police from schools. Teaching about race and American history, or sometimes, anything called “diversity, equity and inclusion” or even “social-emotional learning.”
So the shouting, screaming, and threats of violence at school board meetings will go on. Who will dare to stand up for civility and democracy? Who will want to run for their local school board?
The WSJ article by law professor Philip Hamburger asserting that public schools are unconstitutional relies on dubious assertions about the history of public schools. As a historian of education who has written about these issues, I disagree with his analysis.
Hamburger’s central critique of the public schools is that they were created by nativists out of fear of Catholicism and their central purpose was to homogenize all children and mold them into Protestants. He repeatedly asserts that the very idea of the public school was shaped by hostility to Catholics.
The earliest public schools, called “common schools,” were organized in the early 19th-century in small towns and villages by families who wanted their children to gain literacy and numeracy. The parents and communities who established common schools were not thinking about stamping out Catholicism. Families wanted their children to be able to read the Bible, and many wanted their sons to have the skills needed to work as clerks or in other non-agricultural work.
He paints an idyllic portrait of 18th century schools, which is a fantasy of his own creation. He writes:
“The shared civic culture of 18th-century America was highly civilized, and it developed entirely in private schools. The schools, like the parents who supported them, were diverse in curriculum and their religious outlook, including every shade of Protestantism, plus Judaism, Catholicism, deism and religious indifference.”
The truth is that very few children of any faith attended school in the 18th-century. Schooling was available to the wealthy, who hired private tutors, and to those who could afford to send their children to a “dame school,” where a woman instructed young children in her home. There were a few religious schools, for those who could pay for them. The children of the poor had no schooling until the turn of the 19th-century, when philanthropic societies began to organize rudimentary “charity schools” for the poor.
As I showed in my history of the New York City public schools (The Great School Wars), the city’s Catholic Bishop John Hughes (later Archbishop) adamantly objected to the schools of the Public School Society, a private group founded by Quakers. Like all schools at the time, the schools of the PSS used the Protestant Bible in their classrooms and had daily prayers. Bishop Hughes insisted that Catholic children should be taught only in Catholic schools, where they would read the Catholic Bible, learn Catholic prayers, and sing Catholic hymns. The founders of the PSS tried to reach a compromise, but Bishop Hughes insisted on creating a separate system of Catholic schools. He asked the Legislature to fund the Catholic “public schools,” as it was funding the Protestant “public schools,” but the legislature refused.
Were there anti-Catholics who supported public schools? Yes. Were there nativists who hated Catholics and who feared that the Pope wanted to seize control of their city or state? Yes.
Was the primary purpose of the public school movement to stamp out the influence of Catholics? No. The overwhelming majority of Americans supported the growth of public schools because they believed that a democratic society needed educated citizens who were prepared for self-government.
The Catholic school system grew and thrived. Catholic leaders thought their schools were unfairly denied public funding, but the idea of prohibiting the public funding of religious schools was broadly popular and appears in almost every state constitution. The public endorsed the proposition that society as a whole, through taxation, is responsible for maintaining a public school system that offers a free education for all who enroll.
Alongside the generalized belief that a democratic society must educate its citizens so that they will vote wisely and be prepared to serve on a jury, there was a concurrent belief that education had a social purpose. In the 19th-century, educators would speak glowingly about the value of children from different economic backgrounds learning together, the banker’s son next to the baker’s son. In the 20th century, the definition of which children learned side-by-side expanded in fits and starts, often with conflict. Education, it was believed, would overcome economic, social, religious, and racial divides, as children learned together.
Few, if any, would contend that the public schools have overcome differences of race, religion, class, and ethnicity. Yet, without them, who can doubt that those differences would be sharpened? For some, the public schools have been a ladder that enabled social mobility, as well as interracial and interreligious friendships. Would we really want to be a society where each sect, each racial and ethnic group has its separate schools? I don’t think so.
While Hamburger pounds his thesis that public schools are and have always been a nativist strategy to crush Catholics, he fails to consider the fact that in mid-20th century America, a significant number of public school teachers and administrators in urban districts were Catholic.
In my view, he misinterprets the seminal Pierce decision of 1925. The state of Oregon passed a law in 1922 that would have required all children to attend public schools, thus banning all private and religious schools. The Society of Sisters sued to prevent the closing of their religious school. The U.S. Supreme Court declared that the law was unconstitutional. The state could not compel children to attend only public school. Children do not belong to the state but to their parents. The decision was not grounded in free speech rights, as the author here contends. The Court declared the right of parents to choose a private school, but did not suggest that public money should be used to pay for their private schooling. The decision confirmed the right of parents to choose either a free public school or a private school at their own expense.
If Professor Hamburger fears that children will be indoctrinated by their teachers, he should stand strongly against the remedies he proposes. The likeliest place where children might be indoctrinated is in a school that reinforces their parents’ views, a school where teachers all agree, a school where dissenting voices are never heard. The best schools, whether public or private, teach young people to make their own decisions, teach them to think for themselves, teach them about the courage of those who dared to stand alone.
The Wall Street Journal, owned by billionaire RupertMurdoch (who also owns Fox News), runs a steady diet of anti-public school editorials. Sometimes they bash public schools. Sometimes they praise charter schools and vouchers. Sometimes they do all of this in the same editorial. While an opinion piece that expresses a dissenting opinion occasionally gets published, it’s fair to say that the WSJ does not like public schools. In my last book, Slaying Goliath, I praised retired Austin librarian Sara Stevenson for responding to every WSJ vilification of public schools.
Peter Greene responded to the opinion piece by law professor Philip Hamburger, who claimed that public schools are not “constitutional” because they suppress parents’ freedom of speech, that is, their ability to ensure that their children hear, read, and learn only what their parents want them to learn.
Greene begins:
Last Friday, the Wall Street Journal (Fox News’ upscale sibling) published an op-ed from Philip Hamburger, a Columbia law professor and head of the New Civil Liberties Alliance, a Koch-funded pro bono firm that takes cases primarily to defend against the “administrative state.” It’s a hit job on public education with some pretty bold arguments, some of which are pretty insulting. But he sure says a lot of the quiet part out loud, and that makes this worth a look. Let me walk you through this. (Warning–it’s a little rambly, and you can skip to the last section if you want to get the basic layout)
Hamburger signals where he’s headed with the very first paragraph: 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?
Hamburger offers no particular evidence for any of this catalog of arguable points. Various surveys repeatedly show that the majority of parents approve of their child’s public school. The rest is a litany of conservative complaints with no particular evidence, but Hamburger needs the premise to power the rest of his argument.
So here comes Hamburger’s bold assertion:
Education is mostly speech, and parents have a constitutional right to choose the speech with which their children will be educated. They therefore cannot constitutionally be compelled, or even pressured, to make their children a captive audience for government indoctrination. Conservative talking points about public education routinely assert and assume that public education is a service provided to parents, rather than to the students or society at large. It’s case I’ve never seen them successfully make. At the same time, society’s stake in educated members is clear and the entire rationale behind having non-parent taxpayers help pay the cost of public education. In any other instance where the taxpayers subsidize a private individual’s purchase of goods or service (e.g. food stamps, housing), some conservatives say the social safety net is a Bad Thing, so it’s uncharacteristic for them to champion public education as, basically, a welfare program for parents when they want to dramatically reduce all other such programs to bathtub-drowning size (spoiler alert: they’d like to do that with public education, too).
But Hamburger has taken another step here, arguing that speech to children somehow belongs to their parents. It’s a bold notion–do parents somehow have a First Amendment right to control every sound that enters their children’s ears? Where are the children’s rights in this? Or does Hamburger’s argument (as some angry Twitter respondents claim) reduce children to chattel?
Hamburger follows his assertion with some arguments that don’t help. He argues that public education has always attempted to “homogenize and mold the identity of children,” which is a huge claim and, like much of his argument, assumes that schools somehow have the power to overwrite or erase everything that parents have inculcated at home. But then, for the whole argument currently raging, it’s necessary to paint public schools as huge threat in order to justify taking dramatic major action against them….
But “education is speech” is not the really bold part of his argument. That really bold part is where he goes on to say “therefor, parents should have total control over it.” I have so many questions. Should parents have total control over all speech directed at or in the vicinity of their children, including books, and so would I be violating a parent’s First Amendment rights if I gave their child an book for Christmas? And where are the child’s rights in this? Would this mean that a parent is allowed to lock their child in the basement in order to protect that parent’s First Amendment right to control what the child is exposed to?
Hamburger’s argument has implications that he doesn’t get into in his rush to get to “do away with them and give everyone vouchers.” The biggest perhaps is that he has made an argument that non-parent taxpayers should not have to subsidize an education system. I’m betting he’s not unaware of that.
Please open the link and read the rest of the article.
The Wall Street Journal recently published a screed against the very existence of public schools, written by a libertarian lawyer. Imagine teaching in a school where children are allowed to learn only what their parents already believe, no matter how bizarre or hateful it may be. Imagine the difficulty of having a coherent society where there are no compromises, no bonds of mutuality among people of different faiths and ethnicities. The illustration accompanying the article shows the government turning diverse children into identical cookie cutter people. No one today could reasonably argue that the people of the United States, 90% of whom were educated in public schools, have identical views, values, and beliefs. It is Libertarians who would have all of our children molded into clones of their parents and grandparents, with everyone attending schools that narrowly confined them to their own religious, racial, and ethnic enclave. In reality, private sectarian schools are far more likely to “indoctrinate” children than are public schools that include teachers and children from different backgrounds.
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.
By Philip Hamburger Oct. 22, 2021
ILLUSTRATION: PHIL FOSTER
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?
“I don’t think parents should be telling schools what they should teach,” Terry McAuliffe, the Democratic nominee for governor of Virginia, said in a Sept. 28 debate. The National School Boards Association seems to agree: In a Sept. 29 letter to President Biden, its leaders asked for federal intervention to stop “domestic terrorism and hate crimes” against public school officials. Attorney General Merrick Garland obliged, issuing an Oct. 4 memo directing law-enforcement agents and prosecutors to develop “strategies for addressing threats against school administrators, board members, teachers, and staff.”
Mr. Garland’s memo did acknowledge that “spirited debate about policy matters is protected under our Constitution.” That is true but doesn’t go nearly far enough. Education is mostly speech, and parents have a constitutional right to choose the speech with which their children will be educated. They therefore cannot constitutionally be compelled, or even pressured, to make their children a captive audience for government indoctrination.
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.
There is nothing unconstitutional about taxation in support of government speech. Thus taxpayers have no generic right against public-school messages they find objectionable.
But parents are in a different situation. They aren’t merely subsidizing speech they find objectionable. They are being pushed into accepting government speech for their children in place of their own. Government requires parents to educate their children and offers education free of charge. For most parents, the economic pressure to accept this educational speech in place of their own is nearly irresistible.
To be sure, Pierce doesn’t guarantee private education. It merely acknowledges the right of parents to provide it with their own resources. And one may protest that economic pressure is not force. But the Supreme Court has often ruled otherwise.
Merely denying a government benefit will often suffice to violate a right—as when government refuses a benefit without a hearing (Goldberg v. Kelly, 1970), denies a grant on account of the recipient’s religious beliefs (Trinity Lutheran v. Comer, 2017), or subsidizes a media organization on the condition that it refrain from editorializing (FCC v. League of Women Voters, 1984). Financial pressures clearly count.
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.
Most parents can’t afford to turn down public schooling. They therefore can’t adopt speech expressive of their own views in educating their children, whether by paying for a private school or dropping out of work to home-school. So they are constrained to adopt government educational speech in place of their own, in violation of the First Amendment.
A long line of Establishment Clause decisions recognize the risk of coercion in public-school messages. In Grand Rapids School District v. Ball (1985), the high court condemned private religious teaching in rooms leased from public schools. “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,” Justice William Brennan wrote for the majority.
Coercion seemed central in such cases because of the vulnerability of children to indoctrination. Summarizing the court’s jurisprudence, Justice Sandra Day O’Connor, concurring in Wallace v. Jaffree (1985), observed that “when government-sponsored religious exercises are directed at impressionable children who are required to attend school, . . . government endorsement is much more likely to result in coerced religious beliefs.”
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.
Rights are “exceptions” to power, James Madison observed. That is, rights defeat power. But contemporary judicial doctrine allows power to defeat rights—at least when government asserts what is called a compelling interest. One might think that a state’s compelling interest in public education overpowers any parental speech right. Yet because such analysis allows power to subdue rights, it is important to evaluate whether the claimed government interest is really compelling.
The U.S. was founded in an era when almost all schooling was private and religious, and that already suggests that any government interest in public education is neither necessary nor compelling. Further, the idea that public education is a central government interest was popularized by anti-Catholic nativists. Beginning in the mid-19th century, they elevated the public school as a key American institution in their campaign against Catholicism.
In their vision, public schools were essential for inculcating American principles so that children could become independent-minded citizens and thinking voters. The education reformer and politician Horace Mann said that without public schools, American politics would bend toward “those whom ignorance and imbecility have prepared to become slaves.”
That sounds wholesome in the abstract. In practice, it meant that Catholics were mentally enslaved to their priests, and public education was necessary to get to the next generation, imbuing them with Protestant-style ideas so that when they reached adulthood, they would vote more like Protestants.
This goal of shaping future voters gave urgency to the government’s interest in public education. As today, the hope was to liberate children from their parents’ supposedly benighted views and thereby create a different sort of polity. Now as then, this sort of project reeks of prejudice and indoctrination. There is no lawful government interest in displacing the educational speech of parents who don’t hold government-approved views, let alone in altering their children’s identity or creating a government-approved electorate.
The inevitably homogenizing, even indoctrinating, effect of public schools confirms the danger of finding a compelling government interest in them. A 1904 nativist tract grimly declared that the public school is “a great paper mill, into which are cast rags of all kinds and colors, but which lose their special identity and come out white paper, having a common identity. So we want the children of the state, of whatever nationality, color or religion, to pass through this great moral, intellectual and patriotic mill, or transforming process.”
The idea of a common civic culture among children is appealing when it develops voluntarily, but not when state-approved identities and messages are “stamped upon their minds,” as the 1904 tract put it. Far from being a compelling government interest, the project of pressing children into a majority or government mold is a path toward tyranny.
The shared civic culture of 18th-century America was highly civilized, and it developed entirely in private schools. The schools, like the parents who supported them, were diverse in curriculum and their religious outlook, including every shade of Protestantism, plus Judaism, Catholicism, deism and religious indifference.
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.
Parents should begin by asking judges to recognize—at least in declaratory judgments—that the current system is profoundly unconstitutional. Once that is clear, states will be obliged to figure out solutions. Some may choose to offer tax exemptions for dissenting parents; others may provide vouchers. Either way, states cannot deprive parents of their right to educational speech by pushing children into government schools.
Judges will be reluctant to vindicate the uncomfortable truth that education is mostly speech. Many have assimilated the nativist ideal that public education is a central and compelling government interest. As in 1925, however, the threat to parental speech has become unbearable.
Mr. Hamburger teaches at Columbia Law School and is president of the New Civil Liberties Alliance.
A Utah lawmaker wants to require that all materials for social science classes in K-12 be vetted and posted online for parents to review in advance — and teachers are pushing back.
Educators say the proposal shows a lack of trust in their judgment. They call it micromanaging. Some argue that it will hamper their ability to teach students about what’s happening in the world in real time. One called it a “classic witch hunt.”
“The ‘witches’ are social studies teachers who dare discuss current events,” said Deborah Gatrell, a teacher at Hunter High in Granite School District, in a post about her concerns.
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